Eleter v Director-General, Department of Fair Trading

[2002] NSWADT 138

CITATION:	Eleter -v- Director General, Department of Fair Trading [2002] NSWADT 138
DIVISION:	General Division
PARTIES:	APPLICANT Peter Youssef Eleter RESPONDENT Director General, Department of Fair Trading
FILE NUMBER:	013199
HEARING DATES:	07/11/2001
SUBMISSIONS CLOSED:	11/07/2001
DATE OF DECISION:	08/12/2002
BEFORE:	Lees M - Judicial Member
APPLICATION:	Pawnbrokers & Second-Hand Dealers Act - pawnbrokers licence - grant of licence - Pawnbrokers & Second-Hand Dealers Act - second-hand dealers licence - grant of licence - Pawnbrokers licence - grant of licence - Second-Hand Dealers licence - grant of licence
MATTER FOR DECISION:	Principal malltter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Pawnbrokers and Second-hand Dealers Act 1996
CASES CITED:	Aguerre -v- Director General, Department of Fair Trading [1999] NSWADT 27 Joyce -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 17 Pollard v Commonwealth DPP (1992) 28 NSWLR 659 Hadroj -v- Director General, Department of Fair Trading [2002] NSWADT 95
REPRESENTATION:	APPLICANT M Chahoud, solicitor RESPONDENT F Campora, solicitor
ORDERS:	The Tribunal sets aside the decision of the Director-General and substitutes that decision with the decision that Mr Eleter be granted a Pawnbroker & Second-hand Dealer licence.

1 This decision relates to an application by Mr Eleter for review by the Administrative Decisions Tribunal (the Tribunal) of a decision by the Director General of the Department of Fair Trading (the Director General) dated 06.06.2001 to refuse to grant him a Pawnbroker and Second-hand Dealer’s Licence (a licence).

2 The reason given for the refusal was that Mr Eleter was disqualified from holding a licence under s. 8(1)(d) of the Pawnbrokers and Second-hand Dealers Act 1996 (the Act).

3 On 09.07.2001 an application was lodged on behalf of Mr Eleter with this Tribunal for external review of the original decision of 06.06.2001. On both 13.07.2001 and 18.07.2001 requests were made on behalf of Mr Eleter for an internal review of the refusal decision. The internal review decision was made on 20.07.2001 affirming the original decision.

4 The Tribunal's jurisdiction to review the Director General’s decision is found under s 39(1) of the Act and s 38 of the Administrative Decisions Tribunal Act 1997.

Applicable Legislation

5 Section 8 of the Act provides as relevant as follows:

(1) An individual is disqualified from holding a licence if he or she:
(a) – (c) ……
(d) has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded within the last 10 years.
(2) …….
(3) The Director General must refuse to grant a licence to a person who is disqualified by this section ……..
(4) On an application under section 39 for a review of a decision of the Director General refusing to grant a licence to a person because the person is disqualified under subsection (1) (d) or (2) (b), the Administrative Decisions Tribunal may determine that the fact that the person has committed the offence concerned should be ignored on one or more of the following grounds:
(a) the triviality of the acts or omissions giving rise to the offence,
(b) the time that has passed since the offence was committed,
(c) the subsequent good behaviour of the offender,
(d) any other ground prescribed by the regulations.

6 Section 24 of the Act provides as follows:

A person must not, in purported compliance with a requirement under this Act to furnish information, make or furnish any statement that the person knows is false or misleading.
Maximum penalty: 50 penalty units.

7 Section 33 of the Act concerns the revocation of a licence as the consequence of an offence having been committed and reads as relevant:

(1) The finding of a court that a licensee is guilty of an offence under any of sections 188, 189 and 189A of the Crimes Act 1900 (which deal with receiving stolen goods) revokes the licensee's licence, unless the court making the finding determines that, in the particular circumstances of the case, the licence ought to remain in force.
(2) A court by which a licensee is convicted of an offence involving dishonesty (other than an offence referred to in subsection (1)) or an offence against this Act may, in addition to any other penalty imposed for the offence, by order revoke or suspend the licensee's licence.
(3) – (7) …..

8 The Director General provided the Tribunal with a copy of the Department’s file relating to Mr Eleter’s application for a licence under the Act. The application was received on 05 or 07.02.2001. Relevant checks and searches were made in the processing of the application and a Criminal History search conducted between 13.02.2001 and 19.02.2001 revealed that Mr Eleter had a relevant conviction recorded within the last ten years. He had been convicted in the Burwood Local Court on 02.02.1998 of receiving stolen property (s.189 of the Crimes Act 1900 (NSW)). His penalty was a fine of $200 and orders to pay compensation of $150 and court costs of $51. All were paid on 02.02.1998.

9 The Director General also provided the Tribunal with a copy of the Breach Report of the NSW Police Service relating to the offence. The report is dated 26.12.1997. It reports that a car was stolen on 16/17 July 1997 from Neutral Bay and was recovered on 20 July in Lakemba. On the same day as it was recovered Senior Constable John Geaney of Campsie Police attended the rear yard of Mr Eleter’s block of flats and approached Mr Eleter as he was working on a vehicle. There were spare car interior parts here and there suggesting the installation/de-installation of such. On being asked where the parts were from, Mr Eleter stated they were ‘from an abandoned car’ that had been ‘on the streets for months’. He was then informed the parts were from a stolen vehicle. He was arrested and conveyed to the police station for further inquiries. Mr Eleter was cooperative saying he had nothing to hide. On route to the police station, Mr Eleter ‘changed his story’. He stated he had bought the parts from a bloke called Lionel for $150 believing Lionel owned the car and was about to sell it to a motor wreckers. Lionel had driven the car to Mr Eleter’s yard where Mr Eleter removed the parts from ‘Lionel’s’ car and placed parts from his own car into Lionel’s car and then Lionel took the car away. Mr Eleter ‘was informed he would be reported for the offence of ‘Goods in Custody’ and would receive a summons to appear at court’. At hearing on 02.02.1998 Mr Eleter was convicted of breaching s. 189 of the Crimes Act 1900. [‘Lionel’ was arrested and charged with stealing the car on 20.10.1997.]

10 A file note dated 15.03.2001 records a conversation between Mr Eleter and a Department officer. Mr Eleter was enquiring why there was a delay in the processing of his application. He was told it was because of his conviction for receiving stolen property. According to the file note, Mr Eleter’s initial response was there was no such conviction but that he later advised he had been in court over a matter involving a vehicle from which he had obtained spare parts which had turned out to be stolen. Mr Eleter told the officer he was not convicted by the Court but ordered ‘to pay money to the rightful owner or return the goods’.

11 The Director General provided the Tribunal with a copy of the Certificate of Conviction dated 06.11.2001 issued by the Burwood Local Court. Also on the file were copies of a letter dated 25.05.2001 from the Clerk of the Burwood Local Court confirming that Mr Eleter had been convicted of ‘Receiving (Principal Guilty of Felony)’ and the penalty imposed on him.

12 An electronically generated file note dated 31.05.2001 states that in a conversation with an officer of the Burwood Local Court about its letter of 25.05.2001 the officer (‘Adam’) stated that ‘the wording has been used as there are different degrees of receiving’ and that ‘“guilty of felony” is a low degree of offence’.

13 The Department’s file included: Mr Eleter’s eight-page application for the Pawnbroker & Second-hand Dealer Licence. In Part B of the licence application form Mr Eleter had ticked the ‘Yes’ box in answer to the question ‘Have you previously held a Pawnbroker or Second-hand Dealer Licence?’. His application confirmed that his proposed business would be conducted in a shopfront at Victoria Road, Drummoyne.

14 The file contained two page sixes and two page sevens, in each case one appears to have been completed at the time of lodgement and the other on 09.02.2001.

15 On the first page six at Part J Question A, Mr Eleter was asked had he, in NSW or elsewhere, ‘previously applied for an authorisation, whether it be described as a licence or certificate of registration under any act relating to the regulation of any business, trade or profession, industry or occupation?’ to which he replied ‘No’ and then Mr Eleter failed to answer the remaining questions B to E. On the second page six, Mr Eleter answered all questions, A to E. Question C asked whether he ‘had any licence granted which is no longer in force?’ to which he answered ‘Yes’ (and added ‘the same licence I’m applying for’).

16 On the first page seven none of Part J Questions F to J had been answered. On the subsequently supplied page seven, Questions F to J were answered. Question F asked applicants ‘whether they have convictions for fraud or dishonesty …… in the last ten years’. Mr Eleter ticked ‘No’ in answer to this question.

17 Mr Eleter’s conviction was considered by the Director General to be for an offence ‘involving dishonesty’ as referred to by s. 8(1)(d) and therefore he was disqualified from being granted a licence. In such circumstances the Director General was required by s. 8(3) of the Act to refuse to grant Mr Eleter a licence.

18 On 04.06.2001 contact was again made between the Director General’s Department and Mr Eleter. Mr Eleter was advised that due to ‘the nature of his convictions there was no option except to refuse his application’ which it proceeded to do on 06.06.2001.

19 The file documents contain a copy of a Consumer Affairs record relating to Mr Eleter’s previously held Pawnbroking and Second-hand Dealer Licence stating that it had been granted on 05.11.1997 and was surrendered on 02.11.1998. Licences under the Act are valid for one year only and every year the Department runs a probity check on licence holders.

20 Mr Eleter attended the Tribunal hearing and gave oral evidence in support of his application for review. He also provided the Tribunal with a written statement.

21 At the time of the hearing Mr Eleter was 27 years old and married with two young children. After leaving school at the end of year 9 in Australia, Mr Eleter continued his education in Lebanon and while there obtained a certificate in electronics. He returned to Australia in 1996 and worked for ‘Jax Tyres’ (inspecting tyres) from 1996 to 1998 after which (during 1998), having obtained a second-hand dealer licence (in November 1997), he repaired goods at home for ‘Sam’s Power Tools’.

22 In relation to the circumstances of the offence, Mr Eleter stated that ‘…a person whom I have known by the name of Michael Houssam sold me a car that was without registration, being a 1983 Ford Falcon for $150.00’… I had a similar car and it was my intention to use the parts of this car on my car’. Mr Eleter states he ‘made a statement to the Police and then subsequently had to go to court’. Mr Eleter appeared before the court, he was not represented and he pleaded guilty to the offence.

23 Mr Eleter described Mr Houssam as ‘a friend, he used to come around with other friends’. As at July 1997 he had known him about four months. He stated that he provided the Police with all the details he could in relation to Mr Hassoum and that he has not ‘heard of’ or seen Mr Hassoum again. It was at the Police station after being shown a picture that Mr Eleter learned that his friend ‘Lionel’ was in fact ‘Michael’ and that ‘he was known’ to the Police. Mr Eleter disagreed with the Police Breach Report which stated that he had said he obtained the car parts he was installing ‘from an abandoned car’. He said he would not have used the word ‘abandoned’ as he did not understand it. He said he bought the car parts from his friend ‘Lionel’ which was the name by which he knew Mr Massoum. He had not seen Mr Massoum drive the car before but did not think to ask him where he got it from as ‘he was a friend’. Mr Massoum had convinced Mr Eleter the car was going to be scrapped and Mr Eleter believed this as the car had only one week or so’s registration left. Mr Eleter understood that the Police attended his home because they found some of his electronics business cards stuck to the carpet in the stolen vehicle.

24 Mr Eleter claimed he was cooperative with the Police. He believed he had nothing to hide. He claimed he was as helpful as he could be in relation to assisting the Police when they questioned him on 20 July 1997.

25 Mr Eleter admitted he was not as careful or cautious as he should have been and that if ever placed in similar circumstances again he would want to see registration papers and ‘id’ from the seller.

26 In 1999 Mr Eleter applied for and obtained a Private Investigator’s licence. In his application for that licence he disclosed his other conviction (of 1996), which had been for common assault.

27 In 1999 Mr Eleter commenced his own business ‘A1 Joey’ in the removalist and transport industry. Mr Eleter wants to supplement his income from the transport business by buying and selling (and repairing) goods under licence as he had previously done.

28 In relation to his application for the dealer licence and the fact he ticked the ‘No’ box in answer to Part J Question F (referred to above in paragraph 16), which asked applicants whether they had convictions for fraud or dishonesty in the last ten years, Mr Eleter explained he ‘did not know’ what his offence was, he thought his offence was a minor one and did not think it included ‘dishonesty’. He stated that he thought he had understood Question F, but he did not understand the importance of the question.

29 In relation to answering ‘No’ to Part J Question A (referred to above in paragraph 15), Mr Eleter On the first page six at Part J Question A, Mr Eleter was asked had he, in NSW or elsewhere, ‘previously applied for an authorisation, whether it be described as a licence or certificate of registration under any act relating to the regulation of any business, trade or profession, industry or occupation?’ to which he replied ‘No’ and then Mr Eleter failed to answer the remaining questions B to E. On the second page six, Mr Eleter answered all questions, A to E.

30 Part J Question C asked whether he ‘had any licence granted which is no longer in force?’ to which he answered ‘Yes’ (and added ‘the same licence I’m applying for’). In relation to his ticking the ‘No’ box in answer to Part J Question A where he was asked whether he had, in NSW or elsewhere, ‘previously applied for an authorisation, whether it be described as a licence or certificate of registration under any act relating to the regulation of any business, trade or profession, industry or occupation?’, Mr Eleter believes now he had misunderstood the question and did not think that his previous pawnbroker licence fell into the question’s category.

31 The original reason Mr Eleter sought review of the Director General’s decision, as stated in his application, was that the administrator had ‘failed to exercise his discretion pursuant to s 8(4) of the Act’.

32 Submissions made by Mr Chahoud on behalf of Mr Eleter at the Tribunal hearing were that: the Tribunal should consider the circumstances of the offence and the fact it was a one-off transaction; Mr Eleter’s plea of guilty; the difference between stealing and receiving; the fact the offence, while not being trivial, was of a ‘minor nature’ and ‘at the lowest end of the scale’ of seriousness indicated particularly by the ‘nominal’ fine of $200 imposed by the court on Mr Eleter; and the circumstances in which Mr Eleter completed his licence application form and his ‘layman’s’ approach to answering the questions required. It was submitted that Mr Eleter made one error of judgement (in purchasing the car parts) and this was unlikely to be repeated. Mr Chahoud also submitted that it was important Mr Eleter’s licence was surrendered on 02.11.1998 not revoked as the result of conviction on 02.02.1998.

33 In relation to the discretion in s. 8(4)(b), Mr Chahoud submitted that ‘a reasonable time’ must have passed since a licensee’s conviction in order for the Tribunal to exercise its discretion, suggesting that no specific period was required or ruled out by the subsection, and that therefore Mr Eleter’s four years and four months certainly was not excluded from consideration.

34 In relation to the discretion concerning the ‘subsequent behaviour of the offender’, Mr Chahoud noted there had been no further or subsequent offences on Mr Eleter’s part, suggesting this confirmed the ‘one-off’ nature of Mr Eleter’s offence; and that Mr Eleter’s explanation as to why he answered the application form’s questions as he did indicated that he did not have a perfect understanding of the intricacies of the application and should be accepted. Mr Chahoud submitted that the fact Mr Eleter volunteered to the Tribunal at the hearing that he had a private investigator’s licence was a further illustration that Mr Eleter had no intention of covering anything up.

35 Mr Chahoud submitted that the Tribunal should exercise its discretion under s. 8(4) in favour of Mr Eleter and grant him the licence he seeks.

36 In written submissions filed for the purposes of the Tribunal hearing, the Director General referred to the list of criteria to be taken into account in the Tribunal’s exercise of the s. 8(4) discretion as ‘exhaustive’, listing them as ‘triviality’, ‘time since offence committed’ and ‘subsequent good behaviour of offender’ and addressed each in turn. No further grounds had been prescribed by the regulations as provided for by s. 8(4)(d).

37 In relation to the ‘triviality’ ground, the submission was made that Mr Eleter’s offence was a serious offence ‘in the context of the Act’. This was because s. 33 of the Act provides for the immediate revocation of an already granted license where a licensee has been convicted of a ‘receiving stolen goods’ offence. Several specific offences are cited in the Act, including s. 189 of the Crimes Act 1900 (NSW) - the section under which Mr Eleter was charged and convicted. Such specific offences are considered particularly problematic under the Act and attract the sanction of ‘instant revocation’ of the dealer/licensee’s licence, the implication and submission being that such offences fundamentally offend the Act and can thereby be considered ‘serious’.

38 Reference was made on behalf of the Director General to the decision of the President of the Tribunal in the decision of Aguerre -v- Director General, Department of Fair Trading [1999] NSWADT 27 where the offender had been convicted of stealing nearly nine years earlier and had been penalised at the time by the imposition of a small ($500) fine. In that case, although the small fine suggested the offence might fall within the ‘minor’ or ‘lower end of stealing’ category, the President was not prepared to exercise the s. 8(4)(a) discretion as he did not consider it appropriate ‘to describe the matter as trivial’.

39 In relation to the ‘time since offence committed’ serving as a ground to ignore Mr Eleter’s offence, it was submitted at the hearing that the passage of ‘4 years and 4 months’ was a relatively short period of time since the offence was committed bearing in mind that the Act ‘sets a 10 year disqualification period for an applicant who is convicted’ of an offence involving dishonesty and that it was not an appropriate case for the exercise of the discretion in favour of Mr Eleter. It was submitted that ‘four years and four months was not even half way’ through the ten year exclusion period and therefore insufficient time had passed to warrant the exercise of the ‘time passed’ discretion.

40 In relation to the third ground, the ‘subsequent good behaviour of offender’, it was submitted that the Tribunal should take into account any dishonest behaviour subsequent to the offence as well as any subsequent convictions, dishonest or otherwise. It was submitted that there had been further dishonest behaviour by Mr Eleter since his offence ‘in his failure to disclose his dishonesty conviction on his application form’ (Part J Question F) and when questioned, in his provision of different versions to the Police of the circumstances giving rise to his offence.

41 In the submission on behalf of the Director General, although Mr Eleter had no further convictions, he had been ‘less than frank….and did not appear of full candour and honesty…’ several times on his application form, not only in relation to the answer he provided to Part J Question F but also in his answers to Questions A and C. In relation to his answer to Question C the Director General noted that Mr Eleter did not include or refer to the private investigator licence he had held.

42 The concluding submission was that the Tribunal should not exercise any of the s. 8(4) discretions to ignore Mr Eleter’s offence.

Findings and Reasoning

43 The Act is concerned with the regulation of the second-hand and pawnbroking industry. For obvious reasons it imposes requirements on applicants for the granting and renewal of licences.

44 The obligation of the Director–General as the licensing authority is to be satisfied that an applicant does or does not meet the requirements of s. 8(1). If an applicant is disqualified because s/he fails to meet requirement 8(1)(d), the Director–General is required by the Act to refuse to grant a licence.

45 Section 8(4) of the Act provides the Tribunal with the discretion to determine that the fact a person has committed the offence ‘should be ignored on one or more’ of these grounds:

(a) the triviality of the acts or omissions giving rise to the offence,
(b) the time that has passed since the offence was committed,
(c) the subsequent good behaviour of the offender,
(d) any other ground prescribed by the regulations.

46 As noted above, the original basis for Mr Eleter seeking review was that the administrator had ‘failed to exercise his discretion pursuant to s 8 (4) of the Act’. The discretion to be exercised under s 8(4) of the Act is for the Tribunal after an applicant has made an application for external review. The discretion was not available to the Director General to exercise (see Aguerre -v- Director General, Department of Fair Trading [1999] NSWADT 27 at para. 2). Accordingly, the failure to exercise the discretion cannot constitute a basis on which to find the Director General’s decision was incorrect.

47 The section under which Mr Eleter was charged and convicted was s. 189 of the Crimes Act 1900 (NSW) concerning the receiving of property. It states in full:

Whosoever receives, or disposes of, or attempts to dispose of, any property, the stealing whereof is a minor indictable offence, knowing the same to have been stolen, shall be guilty of a minor indictable offence, and whether the person guilty of the principal offence has been previously tried or not, or is amenable to justice or not, shall be liable to imprisonment for three years.

48 The offence has two elements or requirements: (1) a person must receive (or dispose of etc) certain property; and (2) the person must know that such property has been stolen.

49 Section 8 (1)(d) requires the conviction to be:

(i) in New South Wales or elsewhere;
(ii) for an offence involving dishonesty;
(iii) that was recorded within the last 10 years. It is clear that requirements (i) and (iii) are established by the facts.

49 In relation to the remaining question whether or not Mr Eleter’s offence involved dishonesty, it is concluded that it does, for the following reasons. It is not necessary for dishonesty to be a legal component or requirement of the offence. It is enough that dishonesty is involved in the offence in a way which most people would understand the term (see Pollard v Commonwealth DPP (1992) 28 NSWLR 659). In Joyce -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 17 the Tribunal Deputy President stated at para. 18:

“….. Dishonesty” is defined in the Concise Oxford Dictionary (7th edition, Oxford at the Clarendon Press 1982) as "lack of honesty; deceitfulness, fraud." …… The ordinary meaning of dishonesty does not require that the person engage in some positive act. It can include a situation where a person fails to act.

50 Considering the components, or terms, of the s. 189 offence itself, it is difficult to imagine circumstances where the offence could not be considered to involve dishonesty. Where a person knows that the goods have been stolen, the dishonesty involved is in the action of receiving the goods and/or failing to refuse to receive the goods.

51 The phrase ‘an offence involving dishonesty (other than an offence referred to in subsection (1))…’ in s. 33(2) of the Act makes it very clear that the Act itself regards the offences breaching sections 188, 189 and 189A as offences involving dishonesty.

52 Mr Eleter’s plea of guilty to the offence means that he pleaded guilty to ‘knowing that the goods were stolen’. It is noted however that Mr Eleter’s evidence before the hearing was that he did not know the car was stolen; it is not clear that Mr Eleter understood the elements of the offence he had pleaded guilty to. Nonetheless the offence Mr Eleter was convicted of is considered to be one involving dishonesty.

53 In relation to the three bases on which the Tribunal could ignore Mr Eleter’s offence the first is because of the ‘triviality of the acts or omissions giving rise to the offence’. The Tribunal has previously considered ‘triviality’ as it appears in s 8(4) in its decision in Aguerre and more recently in Hadroj -v- Director General, Department of Fair Trading [2002] NSWADT 95.

54 In the case of Mr Aguerre, he had been convicted of the offence of stealing in July 1990 and fined $500 and he was applying for a licence under the Act in 1999. Mr Aguerre was successful in his application in that the Tribunal exercised the s. 8 (4) discretions to ignore his stealing offence on the bases of the time passed (nearly 9 years) and of his behaviour subsequent to the offence. The s. 8(4)(a) triviality discretion was not exercised in Mr Aguerre’s favour by the Tribunal which considered that it was ‘inappropriate to describe the matter as trivial’ despite the fact the fine imposed would tend to suggest the offence was ‘at the lower end of the range of stealing’.

55 The offence of which Mr Eleter was convicted is clearly one of significance, as recognised by the Act itself -it is one of only three expressed offences that give rise to immediate revocation. For that reason it is considered that the offence itself cannot be regarded as trivial. As to whether the acts or omissions giving rise to the offence can be regarded as trivial as a result appears to be a slightly different question. The acts or omissions giving rise to the offence in this case concern Mr Eleter’s belief in the seller as a friend and the advice that the car was otherwise destined for the wrecker and the fact the car had only a week or so of registration left. His failure to exercise any caution in these circumstances is to some degree understandable although somewhat careless. Can such carelessness and lack of caution be considered trivial under the Act? Characterised as omissions in the Hadroj decision the Tribunal considered such omissions ‘as precisely the kinds of omissions that allow dishonest people to trade in stolen goods’. Mr Hadroj was carrying on the business of buying, selling and repairing computers and was charged and convicted with having possession of two stolen computers. In those circumstances, where Mr Hadroj was dealing in the buying and selling of second-hand goods (although without the relevant licence), which are precisely the circumstances contemplated by the Act in terms of licencing and regulating dealers, it would be difficult to conclude that insufficient care or recklessness in the purchasing of goods was in any way unimportant or trifling or trivial. As far as Mr Eleter was concerned, he was not a dealer of any kind and had bought goods for his own use from a friend. In these circumstances his actions leading to his offence might more easily be characterised as incautious or careless, even gullible, rather than trivial. The small sum involved in Mr Eleter’s purchase might be considered trivial or petty but that is not the issue. Although the obligations and responsibilities in this regard are considerably greater for a buyer who is a dealer than for a regular punter, there is still the need for regular buyers to exercise reasonable care and caution in their purchasing of second-hand goods. Mr Eleter failed to exercise such reasonable care and that failure in any buyer contributes to the maintenance of a market for stolen goods. This is not in the general public interest. It is important and not trivial.

56 Although it follows from the smallness of the fine imposed by the Court that Mr Eleter’s offence could be considered at the lower end of receiving offences, it does not similarly follow that the acts or omissions giving rise to the offence could be considered trivial. The discretion under s. 8(4)(a) is not exercised in Mr Eleter’s favour.

57 In relation to the ‘time since offence committed’ serving as a ground to ignore Mr Eleter’s offence, no guidance is provided in the Act as to how this discretion might be exercised. It is clear that no time period has been expressly excluded. A period of ‘just over twelve months’ was considered insufficient time passed in the Hadroj matter whereas nearly nine years was considered sufficient in the Aguerre decision. At the time of the Tribunal hearing nearly four and a half years had passed since Mr Eleter’s offence. Is that a sufficient amount of time?

58 Looking at the ‘receiving’ offence for which Mr Eleter was convicted, it is a minor indictable offence, that is, an offence in respect of which the maximum penalty is less than five years. Mr Eleter’s specific offence involved property valued at less than $5000, the maximum penalty for which is 12 months imprisonment or a fine of 50 penalty units or both; where the property does not exceed $2000 the maximum fine is 20 penalty units. The Police Service Criminal History record included ‘> $2000 & < $5000 – T2’ which is understood to mean that the stolen property was valued at between $2000 and $5000 and that the offence was a ‘Table 2’ offence which carries a lesser penalty than a Table 1 offence which concerns property valued at more than $5000. A penalty unit is currently $110. Given that no imprisonment was ordered and the fine imposed on Mr Eleter was a mere $200 out of a possible $5000 or so, it would not be unreasonable to conclude that the Court did not consider Mr Eleter’s breach to warrant a very heavy penalty. The court set no good behaviour bond. The passage of four and a half years or so is a period over four times the maximum period of time Mr Eleter could have been imprisoned for the offence. It is conceivable that in some circumstances the period of four and a half years without incident after an offence could be considered a comparatively long and possibly sufficient amount of time.

59 However the Act sets a 10 year disqualification period for an applicant who is convicted of an offence involving dishonesty. In Mr Eleter’s circumstances his offence was one involving dishonesty and one of only several expressly nominated offences requiring instant revocation under the Act. It can be regarded as a significant offence in relation to the Act. It attracts the ten-year disqualification period. As submitted on behalf of the Director General four and a half years is less than half way through the disqualification period. Accordingly, although four and a half years may be sufficient passage of time after some offences, in relation to Mr Eleter’s specific offence it is considered an insufficient period and therefore the s. 8(4)(b) discretion is not exercised in Mr Eleter’s favour.

60 As to whether Mr Eleter’s behaviour subsequent to the offence has been good, the relevant evidence mostly concerns the events of his being approached and questioned by the Police on the day of his offence, the details he provided in his completion of the dealer licence application form and his other behaviour generally.

61 The Director General’s bases for arguing against ignoring the offence because of Mr Eleter’s good behaviour subsequent to the offence are the dishonesty evident in Mr Eleter’s first explanation for the source of his car parts and his omission of relevant details in his completion of the dealer licence application form.

62 In relation to what was allegedly said by Mr Eleter on his first being approached and questioned by the Police, Mr Eleter disputed he answered as suggested in the Police Breach Report. Leaving this discrepancy as to detail aside, it appears that at the very beginning of his questioning Mr Eleter did not tell the entire truth about how he had come by the car parts. Whatever the reason for doing so was (it was not explored in evidence) it is notable that his first explanation sought to leave out the fact he had received the parts and paid a person whom he regarded as a friend for them. He was immediately cooperative with the police and accompanied them to the station. He believed he had nothing to hide. Within a very short time however, in fact in the car en route to the station and after being advised that the car from which he had removed the parts had been stolen, Mr Eleter revised his explanation and told the Police ‘everything he knew’ about the man he bought the car parts from.

63 It is accepted that Mr Eleter’s first response to the Police, although perhaps not stated in the exact words used in the Police Breach Report, was not entirely honest and cannot be considered ‘good behaviour’ for the purposes of s. 8(4)(c). However within a very short time, and having been given a clearer picture of the circumstances, Mr Eleter was completely forthcoming and helpful. It was not in dispute that Mr Eleter was cooperative throughout being approached and questioned by the Police. His evidence provided to the hearing was not contradicted or challenged by the Director General.

64 At his hearing Mr Eleter pleaded guilty to the charge; although allowed a month to pay his fine (together with the relevant costs) Mr Eleter paid it immediately on the day of the court hearing.

65 The Director General submitted that any further offences committed by Mr Eleter, whether involving dishonesty or not, would also be relevant considerations in determining the goodness or otherwise of his behaviour. There was no evidence adduced before the Tribunal suggesting Mr Eleter had been of interest to the Police or involved in any trouble or committed any offences of any kind, subsequent to his ‘receiving’ offence. This confirms Mr Chahoud’s submission that the offence was in the nature of a ‘one-off’.

66 There was no evidence adduced suggesting Mr Eleter was not of good character. It is noted that Mr Eleter did not produce any testimonials or references from anybody attesting to his character. Although such may have assisted Mr Eleter’s claim to good behaviour, no conclusion as to Mr Eleter’s behaviour, good or otherwise can be drawn from their non-production. The fact Mr Eleter was overseas for ten years and self-employed for the three years prior to the hearing may have some relevance in this regard.

67 Mr Eleter’s evidence at the hearing suggested he was a rather ‘open’ person who endeavoured to answer questions as fully as he could. His answers were direct and clear, he volunteered information willingly and without hesitation and not at all calculated for his own benefit. The Tribunal did not find him ‘less than frank….’ in his application form, or while giving evidence.

68 The answers Mr Eleter provided on the licence application form are considered not to be the product of deception or dishonesty or deliberate carelessness but rather a lack of understanding of some of the questions, their intricacies and their relevance and significance. This maybe because of Mr Eleter’s personal capacities or it may be because of the complexity of, or expression of, some of the questions. To answer Part J Question A in the negative and then Part J Question C in the positive is indicative of Mr Eleter’s lack of understanding as to what was being asked. In this regard Mr Chahoud’s submission that as a layman Mr Eleter’s answers to the questions and his explanation for such were understandable, is accepted. Although Mr Eleter clearly completed his licence application form less than perfectly, that is technically incorrectly, and possibly even a little carelessly, Mr Eleter is not found to have acted dishonestly in the way he completed his application form. Mr Eleter needs to remember, however, that it is of the utmost importance to complete applications forms carefully and honestly and not to disregard questions if he considers them irrelevant. That is not for him to determine.

69 In conclusion the Tribunal finds that on balance, Mr Eleter’s behaviour subsequent to his offence has been good, if not very good, and warrants the exercise of the discretion under s. 8 (4)(c) in his favour.

Decision

70 For these reasons the decision of the Tribunal, in accordance with s 63(3)(c) of the Administrative Decisions Tribunal Act 1997, is to set aside the decision of the Director General and make a decision in substitution for that decision being that Mr Eleter’s application for a Pawnbroker Second-hand Dealer licence be granted.