Potts v Commissioner for Fair Trading

NCAT Occupational|2021-12-14

Introduction

Aaron Mathew Potts (the Applicant) held contractor licence 252759C in the work categories of wall and floor tiling from 23 October 2012 to 22 October 2014, and again from 19 September 2015 to 18 September 2018.
On 5 May 2021, the Applicant lodged an application under the Home Building Act 1989 (NSW) (the HBA) with the Commissioner for Fair Trading (the Respondent) for a contractor licence in the work categories of wall and floor tiling and waterproofing (the Application). On 22 July 2021, the Application was refused pursuant to s 20(1)(a) and s 20(1A) of the HBA on the basis that the Respondent was not satisfied that the Applicant was a fit and proper person to hold a contractor licence.
The Applicant sought internal review of the decision and on 4 August 2021 the original decision to refuse the Applicant's application was affirmed. On 17 August 2021, the Applicant applied to this Tribunal for review.

Jurisdiction

The Tribunal has jurisdiction to review the Respondent's refusal of the Application pursuant to s 83B(1) of the HBA, s 9 of the Administrative Decisions Review Act 1997 (NSW) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW).

The legislative scheme

The Secretary is empowered to grant contractor licences pursuant to s 19 of the HBA, in accordance with Part 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW).
Section 20(1)(a) of the HBA provides that the Secretary must refuse an application for a contractor licence if not satisfied that the applicant is a fit and proper person to hold a contractor licence. Section 20(1A) of the HBA provides as follows: (1A) Without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.
"Secretary" is defined in the HBA to mean the Respondent.

"Fit and proper" and "good repute"

The meaning of the term "fit and proper person" has been considered by this Tribunal and other courts and tribunals on many occasions.
In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156, Dixon CJ, McTiernan and Webb JJ said: "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability."
A person's fitness and propriety is to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]).
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380, Toohey and Gaudron JJ said: The expression "a fit and proper person", takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However depending upon the nature of the activities the question may be whether improper conduct has occurred, whether it is likely to occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of likely future conduct) or reputation (because it provides indication of public perceptions as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake activities in question.
They went on to say at 388: The question whether a person is fit and proper is one of value judgement. In that process the seriousness or otherwise of particular conduct is a matter for valuation by the decision maker. So too is the weight, if any to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said in respect of the term "fit and proper": In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence…but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public…as a person to be entrusted with the sort of work which the licence entails.
One of the functions of the licensing regime under the HBA is to ensure there is public confidence in the home building industry. In McEvoy v Director General of the Department of Fair Trading [2000] NSWLEC 183 at (McEvoy), in the Land and Environment Court, Lloyd J refused a person's registration as a valuer on the basis that he was not a fit and proper person. In reaching such a view Lloyd J said at [35]: Secondly, the act of registration as a valuer amounts to public certification that the person is an honest in whom confidence can be reposed (in Re Arnold). Both the public and the court must be able to repose confidence in registered valuers and must be able to accept without question their honesty and good character. In cases of this kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of a penalty to the individual (Dad v General Dental Council [2000] 1 WLR 1538 at 1534. PC). Entry to a profession which is in the public eye is a privilege which is reserved for those who are of good character (Ex part Davis, Sakellis). I do not think that a person who is still under a bond in respect of a serious criminal offence can be said to be a person of good character ( Sakellis ). The seriousness of the offence in this case is illustrated by the fact that it is both an indictable offence and one which carries the maximum penalty of ten years imprisonment (section 156 Crimes Act 1900).
The Applicant has applied for a contractor licence, and this authorises the holder to enter into contracts with consumers. In Harries v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 203 (Harries) when dealing with an individual full licence under the Property, Stock and Business Agents Act 2002 (NSW) Judicial Member Montgomery said at [54] that he agreed with the Commissioner's view that the legislation differentiates between certificate holders and licensees. In his view, the differentiation warrants the application of a more vigorous approach to the assessment of a licence application in comparison to the renewal of a Certificate of Registration.
More recently, the Tribunal in Lee v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 101 (Lee) said at [21]: The relevant context here is the provision of an authorisation to supervise home building work. I respectfully adopt Senior Member Ransome's observations in Spasevski v Commissioner for Fair Trading [2017] NSWCATOD 53 ("Spasevski") at [12]-[17], another case determining an application for review of a licensing decision under the Home Building Act, about the relevant legislative regime: "17 Under the licencing regime established by the Act, the Commissioner warrants to the public that, not only has the licenced person the requisite skills, qualifications and knowledge to undertake the work, but that they are also a person in whom the home owner can have confidence.

Criminal convictions

The Tribunal has considered the assessment of criminality in relation to fitness and propriety in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 (Grenfell). That was a case considering the fitness and propriety of a person to hold a trade person's certificate under the Motor Vehicle Repairs Act 1980 (NSW) Judicial Member Molony said at [15]: The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation.
In the case of Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 (24 September 2015), Senior Member Montgomery stated at [82]: "… the Tribunal is required to take into account the nature and seriousness of the original conduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past conduct, the Applicant's explanation of the conduct, the impact of the effluxion of time and the Applicant's present circumstances and reputation…"
Evidence of a conviction for a criminal offence is prima facie evidence of bad repute: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 402 [31]. However, it is not determinative evidence, and the factual issue is to be determined in all the circumstances of the case: Saadieh v Director General, Department of Transport [1999] NSWADT 68 (Saadieh) at [14]-[15]. When assessing the Applicant's fitness to be authorised to drive a taxi, the Tribunal in Saadieh commented at [17] to [18] as follows: 17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: • the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; • the nature, seriousness and frequency of any complaints made against the applicant; • the applicant's driving record; • the applicant's reputation in the community; and • the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 18 In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers.

Applicant's criminal history

On 28 July 2015 at Picton Local Court, the Applicant was convicted of possess prohibited drug and fined $800.
On 1 June 2017, the Applicant was arrested and charged in relation to a number of offences that occurred between 14 April 2017 and 1 June 2017. The Applicant pleaded guilty to a charge of supply a large commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act), namely that between 14 April 2017 and 1 June 2017, he supplied and agreed to supply a total of 514.3 grams of methylamphetamine. He also pleaded guilty to two further offences of possess a prohibited weapon without a permit under s 7(1) of the Weapons Prohibition Act 1998 (NSW), namely the possession of an extendable baton in a pouch and a set of knuckle dusters. The total amount of money received by the Applicant for the supply was $71,400 plus an agreement for a further $24,000.
The Applicant appeared before Townsden DCJ in the Sydney District Court on 23 November 2018 and was convicted of these three offences. Two further offences were placed on a Form 1 schedule and taken into account on sentence, namely the supply of 28 grams of cocaine and dealing with the proceeds of crime.
The Applicant was sentenced on the basis of Agreed Facts on Sentence (the Agreed Facts) (part of exhibit R1). The Agreed Facts state that in early 2017, Police were granted an authority to conduct a Controlled Operation to investigate the supply of prohibited drugs by the Applicant and the Applicant then supplied and agreed to supply prohibited drugs to an undercover operative. The Agreed Facts refer to seven instances of supply or agreed supply of prohibited drugs. The first occurred on 14 April 2017 at the operative's address and the Applicant supplied him with 26.8 grams of methylamphetamine (75% purity) for the sum of $5,000 and said that he could get him a Blackberry phone for $3000. On 18 April 2017, the Applicant met with the operative at the Camden Valley Inn and received the amount of $5000. In the conversation recorded on a listening device, the Applicant provided his 'Wickr' account details to the operative so that further communication could take place using that application.
On three subsequent occasions, the Applicant supplied further amounts of methylamphetamine in exchange for cash, or with an agreement for the money to be paid later. Various messages were exchanged using the Wickr application. A conversation occurred on 24 May 2017 in the operative's car at Narellan which was recorded on a listening device. The operative said, "I am just stuck with the usual but I could have pushed 5 easy…keep it at 3" and the Applicant responded "Too easy. Same thing, maybe Wednesday and we will keep moving around".
On 1 June 2017, in a carpark in Narellan, the Applicant supplied 83.7 grams of methylamphetamine (78% purity) and 28 grams of cocaine (76% purity) in exchange for $21,400 in cash. Following this, the Applicant also agreed to supply the operative with a further 140 grams of methylamphetamine for the agreed price of $4,800 per ounce (a total of $24,000).
Shortly afterwards, the Applicant was arrested and charged. He remained in custody until sentenced. He was sentenced to an aggregate term of imprisonment of 7 years commencing on 1 June 2017 and expiring on 31 May 2024 with a non-parole period of 3 years and 9 months.

Applicant's fitness to hold a contractor licence

At the hearing, the Respondent primarily relied on the following matters in support of the contention that the Applicant is not a fit and proper person to hold a contractor licence: 1. The objective seriousness of the Applicant's criminal offences. 2. That the Applicant is on parole for those offences until 31 May 2024. 3. That it is too early to attest to whether the Applicant has been rehabilitated, especially taking into account that he remains on parole. 4. That the Applicant has not demonstrated candor in his evidence about his offending. 5. That the evidence given by the Applicant's character witnesses demonstrates that the Applicant has not been candid to them in respect of his offending.
The Respondent submitted that as the Applicant has applied for an endorsed contractor licence which will authorise him to enter into contracts with consumers, that a more rigorous assessment should be applied to his case. In the Applicant's written submissions in reply, the Applicant's legal representative, Mr Ayache, accepted this proposition and submitted that the Applicant is a fit and proper person to hold a contractor licence.

Seriousness of offences

In the Applicant's written submissions at [9], Mr Ayache submitted that the Tribunal would not conclude that the Applicant's offending was of such a nature as to disqualify the Applicant from his chosen industry. It was further submitted at [9a] that the sentencing Judge found the Applicant's offending "was very much to the lower threshold for offences of that type". In the Applicant's written submissions in reply, Mr Ayache reiterated this submission and clarified that it had never been submitted that the offences that the Applicant was ultimately sentenced for were not objectively serious matters.
In his Remarks on Sentence (exhibit R3), Townsden DCJ referred to the Applicant's offences as "objectively serious having regard to both the maximum penalties but also the standard non-parole periods which act as a legislative guidepost when considering the appropriate sentence". The maximum penalty for the offence of supply of prohibited drug not less than a large commercial quantity, pursuant to s 25(2) of the DMT Act, is life imprisonment and the standard non-parole period is 15 years imprisonment. The maximum penalty for an offence of possess a prohibited weapon without a permit is 14 years imprisonment and the standard non-parole period is 5 years. The Applicant's earlier conviction for possess prohibited drug was not found to be an aggravating factor.
When sentencing the Applicant, Townsden DCJ found: In respect to the supply of a large commercial quantity, although not determinative of any assessment, I note the amount was very much towards the lower threshold for offences of this type. However, the offending behaviour occurred over a number of weeks from 14 April to 1 June 2017. The [Applicant] was able to source relatively large amounts over a short period and offered to supply the registered source with a Blackberry phone commonly used to avoid detection. The purity of the drug was relatively high, the total amount of money received was $71,400 plus a further agreement for 24,000. Although not required to do so, I would assess the offending behaviour as below the mid-range but not significantly so.
It is not contested that the Applicant's offences are objectively serious, and they clearly are. I accept the findings by Townsden DCJ referred to above and accordingly do not accept the submission that the Applicant's offending was very much to the lower threshold for offences of that type. Whilst the amount of methylamphetamine was noted to be very much towards the lower threshold for offences of this type, the Applicant's offending behaviour was found to be below the mid-range but not significantly so. The Applicant was also convicted of two counts of possess a prohibited weapon without a permit with other matters being taken into account on a Form 1 schedule.

Parole

The Respondent submitted that the expiry of the Applicant's parole may be the appropriate time to consider whether he is a fit and proper person to be granted the licence and that at the time of the hearing the Applicant had not had sufficient time to demonstrate his fitness.
Whilst the Applicant was sentenced to a non-parole period of three years and nine months, his uncontested evidence before the Tribunal was that he was placed on the Home Detention Re-Integration Program and released from prison six months early as he was deemed to be low risk. He served the remainder of his term of imprisonment in home detention until 28 February 2021 and commenced his parole period thereafter, which concludes on 31 May 2024. Whilst in home detention, he was subject to electronic monitoring and only allowed to leave home for pre-approved purposes. It was not contested that the Applicant had an unblemished record in custody and has had an unremarkable period to date whilst on home detention and on parole, with supervision of the Applicant having now been suspended.
The Applicant's Parole Order dated 26 July 2021 (part exhibit R1), indicates that from 8 March 2021 to 28 August 2023 the Applicant is subject to a number of standard parole conditions, together with the following additional conditions:

He must not use a prohibited drug or substance, except those that have been prescribed to him.
He must not possess or use a firearm or any prohibited weapon.
He must not contact or communicate with Outlaw Motorcycle Gang (OMCG) and Organised Criminal Network (OCN) members or associates; without the express prior approval of his Parole Officer. He must also not visit or frequent any OMCG and OCN premises frequented by members and associates of OMCGs and OCNs.

The Applicant is also subject to suspension conditions from 26 July 2021 to 27 February 2024 whilst his parole supervision is suspended.
Mr Ayache submitted on behalf of the Applicant that there is no statutory warrant for concluding that a person is not a fit and proper person during the currency of a good behaviour bond or parole order and referred to Harries at [21], where Judicial Member Montgomery said "The Tribunal's jurisdiction is not to punish the offender but to protect the public. See Law Society of New South Wales and Bannister (Supreme Court of New South Wales Court of Appeal 27 August 1993)."
Reference was also made by the Applicant to the decision in Lee, where the Tribunal said at [52]: "[t]here is no legal principle to the effect that a person subject to a bond can never be fit and proper to hold a supervisor certificate. All depends upon the circumstances of the particular case." However, in the same paragraph and immediately prior to this excerpt, the Tribunal in Lee made reference to the conclusion of Lloyd J at [35] to which I have previously set out, namely that "I do not think that a person who is still under a bond in respect of a serious criminal offence can be said to be a person of good character".
The Tribunal in Lee continued on to say "It may be that, in general, a person who is under a bond is unlikely to be of good character, or that such a person will have a heavy practical burden of persuading a court or tribunal that he or she is of good character. However, the question of whether a person is "fit and proper" to hold a supervisor certificate (a slightly different, but related question) is a question of fact".
Mr Ayache also referred to Rosenstrauss v Department of Finance and Services [2012] NSWADT 264, where Judicial Member Montgomery said at [86] "However, it not my view that the Applicant must serve the whole parole period before he can be considered to have demonstrated significant rehabilitation and that he has an understanding of the need for candor with the regulator to maintain public confidence in the industry."
I accept the Applicant's submission that there is no legal principle to the effect that a person subject to a bond or whilst on parole can never be fit and proper to hold a contractor licence, and that the question of fitness will depend on the circumstances of the particular case. In this instance, the Applicant has been convicted of an offence carrying a maximum sentence of life imprisonment, is still on parole and is applying for a contractor licence under the HBA. However, regard must be had to all of the Applicant's circumstances to determine whether he is now fit and proper to hold a contractor licence.

Rehabilitation

The Applicant's evidence was that he and his partner would like to buy a home and start a family together and are currently saving to do so. Their ability to save is Iimited as they are both employees on salaries. The Applicant knows that he has the capacity to earn more money and save more money by being self-employed, but he requires a contractor licence to do so. He said that his criminal offences occurred four years ago, he has served his time and wants to move on from that. He is ashamed of his criminal history, is remorseful and is now a different person.
The Respondent submitted that it is too early to attest to whether the Applicant has been rehabilitated, especially taking into account that he remains on parole.
Mr Ayache submitted that the Applicant's offences occurred during the period from 2015 to 2017 and there was a correlation with the issues that the Applicant was facing at the time, namely the death of his grandfather with whom he was very close, his partner suffering a miscarriage and his partner's mother suffering significant health issues. These acted as triggers, leading to recreational drug use in 2015, the time of his first conviction, and then leading to an escalation in the Applicant's drug use which resulted in his offending behaviour in 2017. Mr Ayache submitted that the Tribunal should accept that the Applicant is not a frequent offender. He has committed no further offences since 2017 and is at low risk of re-offending. It was submitted that the Applicant's impeccable behaviour since 2017 is demonstrative of the Applicant's rehabilitation and that the Tribunal should conclude that the Applicant is a fit and proper person.
It was not contested that the Applicant has not committed any further offences since 2017. However, the Applicant was in prison from 1 June 2017 to 29 August 2020, and then subject to home detention until 28 February 2021, when he commenced his parole. His parole is ongoing until 31 May 2024 and he is currently subject to a number of conditions.
In the Remarks on Sentence, Townsden DCJ accepted that the Applicant had "good prospects of rehabilitation which would be enhanced if provided appropriate counselling on an ongoing basis upon release. However, any such assessment must be guarded again as the [Applicant] has not given evidence". Townsden DCJ had regard to a number of matters including the Applicant's need for ongoing supervision and counselling within the community, making a finding of special circumstances and imposing a longer additional term of imprisonment on that basis.
When arrested on 1 June 2017, the Applicant did not participate in a record of interview and did not give evidence at the sentence hearing on 23 November 2018, instead relying on a handwritten letter dated 11 July 2018 (the 2018 letter) (exhibit A8 in these proceedings). In the 2018 letter the Applicant expressed remorse for his actions. He said that he had abstained from the use of any drugs, completed the remand addictions course and had sought counselling for his issues, including self-referring himself to welfare officers and meeting with the prison Chaplain. A letter from the Applicant's partner was also tendered at sentence in which she said that she and the Applicant planned to attend counselling and NA meetings once the Applicant was released.
The Remarks on Sentence indicate that a report by Ms Caroline Hare, forensic psychologist dated 11 June 2018 was tendered by consent. A copy of Ms Hare's report was not in evidence before the Tribunal but an extract from the report in the Remarks on Sentence refers to the Applicant's "stable upbringing, positive work history and the presence of pro-social reports, including a stable romantic relationship". Townsden DCJ stated: The report then details the [Applicant's] personality characteristics, specifically his strong need for social approval and tendency to rely on others for guidance and leadership, combined with a vulnerability towards impulsivity and recklessness. According to the report his personality traits rendered him susceptible to committing the current offences and this could be addressed through engaging a psychological intervention to target interpersonal problem-solving skills. His symptoms are consistent with a diagnostic cyclothymic disorder and it seems that his drug use has at times been motivated by his desire to regulate his mood".
The Applicant confirmed that he had completed a drug and alcohol course while on remand but that he was not eligible for any programs in custody as his risk of re-offending was deemed to be very low. He had completed a number of vocational courses since his release but had not attended any counselling. He did not believe that he would have any counselling going forward but would do so if required. In her evidence, the Applicant's partner confirmed that she and the Applicant had not attended counselling or Narcotics Anonymous and that she did not feel that it was necessary.
The Applicant relied on a report from Mr Sam Borenstein, Clinical Psychologist dated 28 October 2021 (exhibit A1). In his report, Mr Borenstein opines that "Psychological assessment and in particular results on the Self-Appraisal Questionnaire (SAQ) indicates [the Applicant] is not at risk to members of the public and the likelihood of re-offending is extremely low/negligible". Mr Borenstein was not required for cross-examination in the proceedings and was not called to give evidence. Whilst Mr Borenstein refers to a number of specific documents in his report, the first paragraph of his report also makes reference to email correspondence from the Applicant's legal representatives dated 25 October 2021. The contents of this email correspondence are not described in his report and the correspondence itself was not before the Tribunal.
The Applicant's evidence was that everything he told Mr Borenstein was true and correct, that he had read his report prior to the hearing and that Mr Borenstein's summary of his personal background was accurate. In his report, Mr Borenstein states that prior to his arrest, the Applicant consumed cocaine recreationally and was a moderate consumer of alcohol.
The Applicant gave evidence to the Tribunal about his drug use prior to his arrest, stating that it varied. He agreed in cross-examination that he had self-diagnosed himself as having an ice addiction. He conceded that whilst Mr Borenstein's report referred to the Applicant's cocaine use, it did not include reference to his use of methylamphetamine. His evidence was that he had told Mr Borenstein about this and the amounts that he was using and did not hide it from him. The Applicant agreed in cross-examination that his use of ice at the time of the offending behaviour was relevant to his mental health but said that he did not raise the report's failure to refer to his methylamphetamine use with Mr Borenstein as it was a psychological evaluation, and he was doing his job.
As referred to above, Mr Borenstein was not called to give evidence in these proceedings. The Respondent submitted that the Tribunal should draw the inference that because Mr Borenstein's report did not refer to the Applicant's use of methylamphetamine that the Applicant had not disclosed this use to him. There are any number of potential reasons for Mr Borenstein failing to refer to the Applicant's use of methylamphetamine and in the circumstances, I am not satisfied to the relevant standard that the evidence establishes that the Applicant failed to disclose his use of methylamphetamine to Mr Borenstein.
In addition to not referring to the Applicant's use of methylamphetamine, Mr Borenstein's report makes no mention of the Applicant's account that he sold drugs to support his drug habit, the Agreed Facts, the Remarks on Sentence or to Ms Hare's 2018 report. Having regard only to the evidence before me, I am not satisfied that Mr Borenstein considered this material, or that if he did, of the bearing, if any that it had on the opinions expressed in his report. On that basis, I give limited weight to the opinions reached by Mr Borenstein in his report.

Candor

Mr Ayache submitted that the Applicant has been candid, honest and trustworthy and at no time when making his Application did he seek to hide his criminal indiscretions or was not candid about them. The Respondent's legal representative, Mr Morrissey, submitted that the Applicant had not been candid in relation to his offending behaviour and had given conflicting accounts in his evidence before the Tribunal.
I accept that when he lodged his Application, the Applicant completed the Additional Details Form 3 (part exhibit R1) to advise that he had a criminal record, had been imprisoned and was on parole until May 2024 and that he provided further information as requested by the Respondent during the internal review process and that following cross-examination in these proceedings, a copy of his 2018 letter was tendered. As previously referred to, the Applicant did not participate in a record of interview with police and did not give evidence at his 2018 sentence proceedings. The Applicant was under no legal obligation to do so, and I draw no adverse inferences in this regard.
The Tribunal proceedings afforded the Applicant the opportunity to provide his account of his offending conduct and various material was relied upon by him, including the 2018 letter, the Applicant's submission to the internal review (part exhibit R1), the Applicant's Affidavit (exhibit A2), the Applicant's oral evidence as well as the report of Mr Borenstein
In the 2018 letter, the Applicant indicated that the loss of his grandfather and his partner's miscarriage had led him to a "more frequent use of cocaine and methamphetamine which heavily clouded [his] judgment and rational thinking". He stated that any monies that he obtained from drug sales were used by him to buy further drugs in order to support his ice addiction and that he only profited about $500 for each ounce that he sold to the under-cover officer.
In the Applicant's submission to the internal review, he again referred to the loss of his grandfather and his partner's miscarriage and said that these "two contributing factors along with recreational cocaine use clouded my judgement, and in my ignorance helped someone whom I thought was a friend but was in fact a police informant who was in serious trouble and needed to set someone up so he himself could avoid jail." He went on to acknowledge that this was no excuse and that he should have known better.
In his Affidavit, the Applicant says that he fell into a state of depression following his grandfather's death in 2015. He said that on one occasion he was given cocaine to try to cheer him up. He tried it and it did make him feel better, and this lead to the charge of possession of cocaine that appears in his criminal record. He said that initially his cocaine use was very minor, but it became worse following his partner's miscarriage and her mother's brain tumour and he became more consumed with self-medicating through drug use. Eventually his drug habit became too expensive, and he had a drug debt. He began selling drugs for a member of a motorcycle gang in order to support his drug habit and to pay his drug debt. It was these actions that resulted in his 2017 arrest and subsequent convictions. The Applicant said at [9] "[a]t the time that I was involved in selling drugs, I did not turn my mind to what I was doing. My only thought was thinking that I needed to sell these drugs in order to make money to pay off my drug debt."
Mr Borenstein's report references the Applicant saying, apparently in respect of the period leading up to and during the offending period, that he was very busy at work, with two employees, and that a person who was a known member of a motorcycle gang, "kept harassing and hassling me. I went along with things to get him off my back". The Applicant "confirmed feeling he could not go against the request as the person was a member of an outlaw motorcycle gang, and [the Applicant] feared potential danger to himself and his partner." Under the heading "Opinion", Mr Borenstein recorded that the Applicant stated that he was "pressured, and harassed" by a male person that he knew to be a member of an "Outlaw Motorcycle Gang" and that he "succumbed to the pressure, and entered into the offending behaviour, purely out of fear" of what this person was capable of.
In cross-examination, Mr Morrissey took the Applicant to his submission to the internal review where he referred to helping a person that he thought was a friend. The Applicant gave evidence that this was the same person who was a member of a motorcycle gang. His evidence was that this person was harassing him and trying to get him to acquire things and there was constant harassing and vilification. He conceded that there was no reference to this in the Agreed Facts or the recorded conversations referred to therein. The Applicant stated that it was four years ago, he had served his time, completed certificates and this was an attempt to regurgitate the facts. He stated that he had done the wrong thing and was punished accordingly.
In his evidence, the Applicant acknowledged the content of the Remarks on Sentence but did not provide much further detail. He said that the Blackberry was "just a phone" and responded "no comment" when asked about the price of $3000. He acknowledged using the Wick'r platform, initially stating that it was just a messaging app, before conceding that at that time he had been using it to evade detection. He denied that the reference to "moving around" in the recorded conversation referred to in the Agreed Facts was to evade detection and said that it was a reference to him moving around for work.
In re-examination, he agreed that he had become emotional when being asked about the Agreed Facts. He apologised for this and said that he wanted to move on. He agreed that at the time of the offences he was a drug dealer and had acted like a drug dealer, but this was not the person he was today.
Whilst, for the reasons outlined above, I have determined to give little weight to the opinions reached by Mr Borenstein in his report, the Applicant's evidence was that he had reviewed the report prior to giving evidence and that everything he told Mr Borenstein was true and correct. On this basis, I accept the statements attributed to the Applicant in Mr Borenstein's report as an accurate representation of what the Applicant said to him during his assessment. The Applicant's acc
Whilst I accept that the Applicant is remorseful for his actions and ashamed of his criminal offending, having regard to all of the evidence before the Tribunal, I find that the Applicant has not been fully candid in his account of his offending conduct and that his accounts are not consistent.

Character witnesses

The Applicant relied on a number of character witnesses (exhibits A3 to A7), including his partner. All but one, namely the Applicant's accountant (exhibit A7), were required for cross-examination. Mr Crichton (exhibit A5) was not available and did not give oral evidence. The Applicant had previously supplied various character references in support of his internal review application, including from Mr Barron, the manager of his current employer, and Mr Barron was also required for cross-examination. All of the character witnesses were aware that the Applicant had a criminal history and they had all known him prior to the 2017 offences.
Mr Stratti (exhibit A4) is a licenced builder and has known the Applicant for approximately 18 years in both a personal and professional capacity. He stated that the Applicant has a good reputation amongst those in the building industry and he highly recommended him for his skills, honesty and reliability in business. He stated in his Affidavit that he had read the Agreed Facts and that the offences were out of character. He said that the Applicant had explained to him that at the time of the offences he had developed a drug addiction but would never go near drugs again. In cross-examination, he conceded that the wording in his Affidavit did not accurately reflect what had occurred as he had not personally read the Agreed Facts. Mr Stratti stated that he was aware of the offences as they had been disclosed to him in a recent conversation with the Applicant. His evidence was that the Applicant had been addicted to cocaine. He was aware of the Applicant's grief following the loss of his grandfather and that there seemed to be a partial improvement. He said that he had drifted apart from the Applicant around the time of the 2017 offences. In re-examination he said that he was aware of the facts for which the Applicant received a custodial sentence and that it related to the supply of a large commercial supply of methamphetamine.
Mr Dunk is a friend of the Applicant's mother and has known the Applicant since he was a child. The Applicant carried out tiling work for him in 2016 in a very professional manner and he attested to the Applicant's professionalism, integrity, honesty and abilities as a tiler. In his affidavit (exbibit A6), he said that he was aware of the criminal offences for which the Applicant was sentenced and that nothing in the Applicant's character or conduct after that time affects his earlier reference. In cross-examination, Mr Dunk gave evidence that the 2017 offences were out of character for the Applicant. In further evidence, he said that he was unaware of the 2015 conviction and that all he knew about the 2017 offences was that the Applicant was arrested for selling narcotics to an undercover agent, and that he thought that it related to cocaine. He was aware that the Applicant's sentence was around 6 years and that he had served three to three and a half years in jail. He was not aware of anything else about the charges and was surprised about the weapons charge. In re-examination, Mr Dunk said that his belief that the Applicant had been selling cocaine had come from a conversation with the Applicant or his mother. Mr Dunk said that the Applicant had not told him that he was using cocaine at the time of the offences, and he had not had a conversation with the Applicant about what was going on in his life. He said that any discussion with the Applicant's mother was "brief".
Mr Barron is the manager of the landscaping company currently employing the Applicant. He gave evidence that he had known the Applicant for 19 years and that he was a great employee, motivated and a hard worker as well as being a good friend. Mr Barron was aware of the Applicant's criminal past and that he had made mistakes . He said nothing had changed and that the Applicant was the same guy that he knew before. He was aware that the Applicant was selling ice and drugs. He believed that the Applicant had learnt from his mistakes and would not continue down that path in the future. In cross-examination, Mr Barron said that the Applicant did all the tiling for the business and that this was outdoor tiling. He said that it was not standard practice to advise every single client that a worker was on parole, and that no homeowner had been so advised in relation to the Applicant.
Mr Barron said that he was not aware of the weapons charges and that he had never had an "out and out" conversation with the Applicant about the offences and that it was not his business to do so, He said that if he wanted to know more, he could ask. He said that the discussion about drugs had taken place on one or two occasions a long time ago. In re-examination, he said that be believed the Applicant's explanation in relation to the prohibited weapons.
Whilst all of the Applicant's character witnesses were aware of his criminal offending, I find that the Applicant has not been candid with them as to the full extent of the offences and his role in them. I accept Mr Ayache's submission that the character witnesses were all aware that the Applicant had prior offences and were still prepared to give character evidence on his behalf. However, I find that the weight to be afforded to such character evidence is significantly reduced where the witness was not aware of the full extent of the Applicant's offending conduct.

Consideration

I accept that the Applicant is remorseful for his actions and ashamed of his criminal offending. During the period that the Applicant previously held a contractor licence, he owned and operated his own business and received no public warnings, insurance claims or complaints. I accept the evidence of his character witnesses that he is well regarded for his skills and professionalism in respect of his tiling work, and that this was also the case prior to the 2017 offences. I accept that the Applicant was a model prisoner and that he has not committed any offences since 2017. This must however be considered in light of the relatively short period between the Applicant's release on parole in March 2021 and the hearing in February 2022.
Whilst it was accepted by Townsden DCJ in the 2018 sentence proceedings that the Applicant had "good prospects of rehabilitation", this assessment was guarded as the Applicant had not given evidence. It was also stated that such prospects would be enhanced if the Applicant was provided appropriate counselling on an ongoing basis upon his release. However, the Applicant has not undertaken any counselling since his release and there is no evidence that the matters raised in Ms Hare's 2018 report have been addressed at any time. Mr Borenstein opined that the likelihood of the Applicant re-offending was extremely low/negligible but for the reasons outlined above, I afford this opinion little weight. Whilst the Applicant gave evidence that he had learned his lesson and now had a big support network around him, there was no evidence of increased support from friends, family or professional service providers (Saadieh at [18]) since the time of the offending conduct.
The Applicant's criminal offences are objectively serious, and he remains on parole until 31 May 2024. His parole is currently subject to a number of conditions, including both standard conditions and additional conditions relating to Outlaw Motorcycle Gangs and Organised Criminal Networks. Whilst I accept that the Applicant is ashamed of his offending behaviour and would like to put it behind him, the Tribunal proceedings represent the first time that the Applicant has given evidence about his conduct and provides an opportunity for the Tribunal to determine whether the Applicant is of good repute. Whilst the Applicant has been candid about the existence of his criminal convictions and repeatedly accepted responsibility for his offending conduct, throughout his evidence, I have found that he was not consistent in his accounts of his role in the offending conduct and was not fully candid to his character witnesses or to the Tribunal.
Section 20(1)(a) of the HBA provides that the Secretary must refuse an application for a contractor licence if not satisfied that the applicant is a fit and proper person to hold a contractor licence. Having regard to the particular circumstances of this matter, I am not satisfied that the Applicant is a fit and proper person at this time to hold a contractor licence under the HBA. Accordingly, the correct and preferable decision is that the decision under review should be affirmed.

Order

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: 09 November 2022

Motor Vehicle Repairs Act 1980(NSW)

Property, Stock and Business Agents Act 2002(NSW)

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Judgment (14 paragraphs)

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Legislation Cited (8)

Cases Cited (7)