Tabban v The King
[2024] VSCA 216
•23 September 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0074 |
| STEVEN TABBAN | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | TAYLOR JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 23 September 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 216 |
| JUDGMENT APPEALED FROM: | DPP v Tabban [2024] VCC 239 (Judge Lyon) |
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURUSANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Sentence – Applicant convicted of two charges of sexual assault – Applicant offended against two separate complainants in a like manner about 12 months apart – Applicant’s licence as a real estate agent cancelled as a result of offending – Applicant sentenced to an 18 month adjourned undertaking with conviction – Whether judge erred in failing to take into account a material consideration being the prospect of the applicant being relicensed if given a non-conviction disposition – Whether the finding of guilt without conviction would become immediately spent – Whether decision to impose a conviction was unreasonable or plainly unjust – Application for leave to appeal refused.
Criminal Procedure Act 2009, ss 3, 253B and 275(1); Estate Agents Act 1980, ss 12, 14, 21, 22, 22A, 31C, 32; Sentencing Act 1991, s 8; Spent Convictions Act 2021, ss 3, 7, 8, 11, 9, 20; Spent Conviction Regulations 2021, reg 5A.
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| Counsel | |||
| Applicant: | Mr P J Smallwood | ||
| Respondent: | Mr J O’Connor | ||
| Solicitors | |||
| Applicant: | Emma Turnbull Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TAYLOR JA:
Introduction and overview
The applicant pleaded guilty to two charges of sexual assault.[1] On 5 March 2024 he was sentenced as set out in the table below.[2]
[1]Contrary to s 40 of the Crimes Act 1958. Charge 1 was a rolled-up charge.
[2]DPP v Tabban [2024] VCC 239 (‘Sentencing reasons’).
| Charge on Indictment | Offence | Max Penalty | Sentence |
| 1 | Sexual assault | 10 years’ imprisonment | With conviction released on an Adjourned Undertaking for 18 months (conditions as below) |
| 2 | Sexual assault | 10 years’ imprisonment | |
| Total Effective Sentence: | With conviction released on an Adjourned Undertaking for 18 months, commencing on 5 March 2024. The undertaking is subject to the following conditions: - To be of good behaviour during the period of the adjournment. - To attend before the Court [if given notice requiring attendance] during the period of the adjournment. Special conditions: - To provide the Court with a further brief report from Peter Hanley psychologist detailing the number of sessions attended since sentence and progress towards rehabilitation by 5 November 2024. - To pay into the Court Fund the sum of $1,500.00 (payable to the Registrar of the County Court). | ||
| Pre-sentence Detention Declared: | N/A | ||
| Section 6AAA Statement: | A Community Correction Order of 18 months’ duration with unpaid community work and other conditions. | ||
Other Relevant Orders: N/A | |||
The applicant now seeks leave to appeal against his sentence on the following single ground:
There was an error in the sentence first imposed arising from the manner in which the discretion about whether to record a conviction was exercised.
Particulars:
(a)The sentencing judge did not take into account a material consideration, being the prospect of the applicant and Create Vic Pty Ltd being re-licenced (or having the licence cancellations rescinded) should the convictions be spent pursuant to the operation of the Spent Convictions Act 2021 (Vic).
(b)Further or alternatively, the decision to impose a conviction was unreasonable or plainly unjust.
For the reasons that follow, leave to appeal should be refused.
Circumstances of the offending
The applicant was the director of a real estate agency. The charges to which he pleaded guilty reflect distinct offending against two young complainants separately attending the agency for a purported job interview.
Charge 1
On Saturday 17 November 2018 Ellie Sandover[3], attended the real estate agency. The applicant told Ms Sandover that he was not currently hiring, but wanted to know more about her to see what sort of role would suit her. He asked Ms Sandover what she would give to get everything she wanted.
[3]A pseudonym.
A few days later, Ms Sandover contacted the applicant to follow up after the interview. The applicant replied to her on Saturday 24 November 2018 and made arrangements for her to re-attend the office that day. She did so at approximately 4.50 pm.
During the meeting, the applicant again asked her what she would do to get everything she wanted. He suggested that she run around the office naked and screaming. Ms Sandover said she would not do that, but would shave her head. The applicant replied that he had a razor and asked if she would shave her head then and there.
Ms Sandover then asked the applicant whether there was anything else he could think of. The applicant replied ‘I do have something in mind’ and directed her to sit on his lap. Ms Sandover complied. The applicant placed his left hand onto Ms Sandover’s left thigh, whilst his right hand went around her side and underneath her armpit. The applicant moved his left hand around her thigh and used his right hand to touch the edge of her bra over her clothing. The applicant then grabbed the side of Ms Sandover’s head and tried to turn it towards him before leaning closer and attempting to kiss her. He asked Ms Sandover ‘do you not want to kiss’. She said ‘no’. At that point the applicant’s hand was further up Ms Sandover’s thigh. She pushed it away, stood up and left shortly thereafter.
Ms Sandover went to her mother’s workplace and told her mother what had happened. Ms Sandover made a complaint to police that evening. The following day she participated in a pretext call with the applicant during which he made admissions.
On 14 February 2019 the applicant was arrested and interviewed. He gave no comment answers.
Charge 2
Cassandra Peterson[4], was interviewed by the applicant at his real estate agency on 22 and 24 November 2019. On 25 November 2019 she received a text message informing her that she was one of two final candidates and requesting her attendance for a further interview at 3 pm that day.
[4]A pseudonym.
The applicant informed Ms Peterson, then seated in his office, that she would be interviewed at the same time as the other candidate but that they would be kept in separate rooms. He then asked ‘what would you do to secure the role?’, before leaving the room. Upon his return, the applicant told Ms Peterson that the other candidate had offered a ‘full body massage and a hand job’ in order to secure the position. Ms Peterson said that she was not willing to do that for the job. The applicant then required her to read over paperwork and sign a document. He told Ms Peterson that they then needed to go into a back room.
Once there the applicant told Ms Peterson that it was for a full body massage. He removed his suit jacket and sat on a couch. Ms Peterson massaged the applicant’s shoulders, back and hands. He asked her to massage his quads. While doing so Ms Peterson asked the applicant when he was going to finish the contract. The applicant laughed and said ‘you have to finish your end of the bargain’.
The applicant grabbed Ms Peterson’s right hand, held it tightly and unzipped his pants. He said ‘you don’t have to give me a blow job, just give me a hand job’. Ms Peterson refused but the applicant continued to hold her hand. He continued to try to convince Ms Peterson to partake. She resisted and left the office.
Ms Peterson immediately called her mother and informed her of what had happened. She also reported the matter to police that day.
On 26 November 2019 Ms Peterson participated in two pretext phone calls with the applicant during which he made admissions.
The applicant was arrested and interviewed on 28 November 2019.
Procedural history
A committal hearing was held on 2 November 2021. The applicant pleaded guilty on 20 June 2023. The plea hearing that commenced that day was adjourned part heard to allow the applicant to complete a men’s behavioural change program and to obtain a report from a psychologist as to his engagement with a sexual offender treatment program.
The plea hearing resumed on 28 February 2024. The applicant was sentenced on 5 March 2024.
The applicant’s personal circumstances
The applicant was aged 33 to 34 years at the time of the offending and 38 years at the time of sentence.
An only child, he was raised in Melbourne by his parents to whom he was very close. In 2012 his father was diagnosed with Parkinson’s disease and cancer. The applicant ceased work for approximately two years to care for his father full-time. The applicant’s father now resides in a retirement home. The applicant visits him daily. The applicant’s mother was diagnosed with stage four cancer in 2018 and died in 2021.
The applicant has been married twice. He met his first wife in 2012. They separated in 2020. He commenced a relationship with his current wife in 2022. Together they have one child, born in July 2023.
The applicant was an average student and successfully completed the VCE. He has been in employment since the age of 15. He first worked at Baker’s Delight before commencing his career as a real estate agent at a branch of a well-known agency.
In 2015 the applicant established his own real estate agency. His first wife was heavily involved in this business and employed as a receptionist.
As a consequence of the applicant’s pleas of guilty to the two charges of sexual assault coming to the attention of the Business Licensing Authority (BLA), the applicant was notified on 4 August 2023 that his real estate licence (and the Create Vic Pty Ltd company licence of his real estate agency) had been cancelled.[5] Unless relicensed as an agent, the applicant can only work in his real estate agency in an administrative position.
[5]The actions of the BLA are considered further below.
The applicant had previously been heavily involved in local community groups including his local community business association and the local football club. As a result of his offending and the publicity associated with the court proceedings, the applicant has been required to step down from his formal involvement with these groups.
Peter Hanley, psychologist, supervised the applicant’s undertaking of the sex offender treatment program and the men’s behavioural change program. Mr Hanley prepared a report dated 23 February 2024 tendered on the plea. While Mr Hanley considers that the applicant shows signs of narcissistic personality disorder, he also considers that the applicant had made good progress on the sex offender treatment program and had shown some insight into his offending by taking responsibility for his actions.
The BLA
On 23 June 2023, some three days after the plea commenced before the sentencing judge, the BLA wrote to the applicant to state that it had come to their attention that he had pleaded guilty to ‘serious criminal charges (sexual assault)’ in the County Court and was to be later sentenced. The letter stated that the BLA had, accordingly, exercised its powers under s 21A of the Estate Agents Act 1980 (‘EAA’) to impose a condition on the applicant’s individual and company estate agent licences. That condition required the licensee (both individual and company) to notify the BLA within 48 hours of the outcome of any subsequent court proceeding related to the plea hearing ‘only if the final court outcome is not a spent conviction within the meaning of the Spent Convictions Act 2021’ (‘SCA’).
The letter then said:
Should the final court outcome result in a spent conviction within the meaning of the [SCA], you may request in writing that the BLA revoke the conditions on your individual and company estate agent licences. This is entirely up to you. The BLA does not request information in relation to a spent conviction and you are not obliged to disclose this information if you do not wish to.
Under a subheading ‘Permission applications (Estate agent licences)’ the letter continued:
Should the final court outcome result in a finding of guilt that is not a spent conviction within the meaning of the [SCA], you must lodge permission applications to the BLA to continue to hold your individual and company licences in accordance with sections 31C and 31CA of the [EAA]. A disqualifying offence is where a person has been convicted or found guilty within the last 10 years of an offence involving fraud, dishonesty, drug trafficking or violence which is punishable by a term of imprisonment for 3 months or more (whether or not the person was sentenced to imprisonment). It would appear that your offences are of a disqualifying nature.
I draw your attention section [sic] 22(2) of the [EAA], which provides that a person’s estate agent’s licence is automatically cancelled 30 days after the person has found proven against him or her, an offence involving fraud, dishonesty, drug trafficking or violence which is punishable by imprisonment for three months or more, (whether or not the person was sentenced to imprisonment), if no application for permission has been made. Given this information, the individual and company permission applications must be lodged within 3 days of the final court outcome to avoid the automatic cancellation of the individual and company licences.
On 4 August 2023 the BLA sent a further letter to the applicant. That letter referenced the earlier 23 June letter and said that at the time it was sent the BLA were not aware that the applicant had entered his plea of guilty at a full arraignment. The letter continued:
Pursuant to section 253B(a) of the Criminal Procedure Act 2009 [‘CPA’] a person is found guilty of an offence if on arraignment an accused enters a plea of guilty to a charge for an offence. Accordingly, the BLA considers you have been found guilty of an offence and the charges against you have been proven.
The letter noted that the offences to which the applicant had pleaded guilty were disqualifying offences because they carried a maximum penalty of 10 years’ imprisonment. It continued:
Pursuant to section 22(2)(a) of the [EAA] a person’s licence as an estate agent is automatically cancelled 30 days after the person is convicted of, or has found proven against him or her, any offence involving fraud, dishonesty, drug trafficking or violence which is punishable by imprisonment for 3 months or more.
Accordingly, as you have been found guilty of a violent offence and 30 days has elapsed since these charges were found proven, your individual estate agent’s licence is cancelled as of 20 July 2023.
In similar terms the letter stated that the company licence had been cancelled as at the same date.
The letter also said:
Pursuant to section 31C of the [EAA] a person with criminal record [sic] may apply to the BLA for permission to hold an estate agent’s licence or to be employed as an agent’s representative. Section 31C(3) of the Act provides that the BLA may give its permission to a person making an application under that section (based on a disqualifying offence) if it is satisfied that it is not contrary to the public interest to do so.
Section 22(3) of the Act provides that if a person whose licence would otherwise be cancelled by subsection (2) applies for permission under section 31A or 31C within the 30 day period referred to in that subsection, the person’s licence is only automatically cancelled if the application is withdrawn or is refused by the Authority. However as 30 days has elapsed since the finding of guilt, this is not applicable to you. Your licence will remain cancelled until such time as you lodge a permissions application and the outcome of that application is determined.
The plea hearings
Counsel for the applicant submitted that a fine and/or an adjourned undertaking without conviction was within range for the applicant’s offending in all the circumstances. Whilst acknowledging sexual assault as an inherently serious offence, it was argued that the applicant’s offending was at the lower end of the range of objective seriousness. The applicant emphasised his prior good character, the utilitarian benefit of his guilty plea and the delay.
Prior to the resumed plea hearing on 28 February 2024 the applicant filed supplementary submissions addressing, in part, the two letters received from the BLA in the following terms:
While there appears to be some contradiction between the two pieces of correspondence, and perhaps a misunderstanding of the spent convictions scheme, it is the current position that [the applicant] has not appealed the decision to cancel his license.
The submissions stated that the applicant had arranged, at ‘significant financial cost and business loss’ legally compliant caretaker arrangements for his agency and that he hoped in future to regain his licence.
The submissions further addressed s 8 of the Sentencing Act 1991 (‘Sentencing Act’) by arguing that the 4 August 2023 letter from the BLA made apparent that should the sentencing outcome fall within the scope of the SCA the applicant would ‘have options to almost immediately apply for re-licensing’ as a real estate agent. This was submitted to be direct evidence of the impact of the recording of a conviction relevant to s 8(c) of the Sentencing Act.
A non-conviction disposition would enable [the applicant] to immediately take steps to restore his career having a direct impact on his economic wellbeing and employment prospects. Noting the other matters in mitigation outlined in counsel’s earlier submissions, the Court is urged to exercise its discretion in favour of a non-conviction disposition in this matter.
Should the Court ultimately conclude to impose a conviction, [the applicant] would need to wait until the expiry of the conviction period (being 10 years) to make an application to have the conviction spent, allowing him to then pursue relicensing.
At the resumed plea hearing on 28 February 2024 both BLA letters were tendered. The applicant submitted that the effect of that correspondence was that because the BLA took the view that the entering of the pleas of guilty amounted to a finding of guilt and that the applicant had failed to disclose that, his licence was cancelled and he was out of time to reapply. He reiterated the written argument that if the penalty imposed upon him fell within the spent convictions legislation it would give him an opportunity to reapply. If it did not, he would need to wait until the expiry of the conviction period to apply to the court for his conviction to be considered spent before he could pursue relicensing with the BLA.
The Crown submitted that the appropriate sentencing disposition was a Community Correction Order with conviction due to the inherent seriousness of the offending and the impact on both of the victims.
With respect to the BLA correspondence, the prosecutor said:
… the process under the licensing board is Byzantine to say the least. Your Honour, my reading of it is that it’s still open for him to make an application, but I think all parties agree that, well certainly defence agree, that the process appears to be problematic, to say the least.
Sentencing reasons
In his Sentencing reasons, the judge summarised the offending behaviour[6], made an assessment as to the objective seriousness of the offending[7], outlined the applicant’s personal circumstances[8] and summarised the parties’ submissions.[9]
[6]Sentencing reasons, [3]-[15].
[7]Sentencing reasons, [23]-[35].
[8]Sentencing reasons, [36]-[65].
[9]Sentencing reasons, [66]-[71].
The judge accepted that, although the applicant’s plea of guilty was not made at the earliest opportunity, it had a high degree of utilitarian value as it spared both complainants from the ordeal of giving evidence in a criminal trial. The applicant was also entitled to a Worboyes[10] discount, as he pleaded guilty at a time where there was still a backlog of cases from the COVID-19 pandemic.[11]
[10]Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.
[11]Sentencing reasons, [72]-[73].
Although the applicant had offended against Ms Peterson almost a year after his arrest for the offending against Ms Sandover, the judge accepted that the applicant had good prospects of rehabilitation, particularly in light of his having undertaken the men’s behavioural change program and the sexual offender treatment program.[12]
[12]Sentencing reasons, [75]-[76].
The judge ultimately considered an adjourned undertaking was the appropriate sentencing disposition in all the circumstances, taking into account his assessment of the offending as low level, the applicant’s personal circumstances and the applicant’s extra-curial punishment through the loss of his individual and company real estate licences and removal from formal involvement in local community groups.[13]
[13]Sentencing reasons, [78].
On the question as to whether a conviction should be recorded, the judge, in considering the matters required pursuant to section 8 of the Sentencing Act, decided that the planned and repeated nature of the applicant’s offending concerning Ms Peterson (in circumstances where the criminal nature of his actions regarding Ms Sandover had been brought to his attention by the police) warranted the recording of a conviction.[14] The judge noted that he had taken into account the applicant’s previous character and the impact on the applicant’s economic circumstances in deciding whether to record a conviction but that, in any event, the actions taken by the BLA and local community groups against the applicant were not predicated upon the recording of a conviction.[15]
[14]Sentencing reasons, [81].
[15]Sentencing reasons, [82].
Applicant’s submissions
The applicant argues that the judge’s discretion in determining whether to record a conviction miscarried because his Honour did not take into account a material consideration, being the prospect of the applicant and his real estate agency being re-licenced (or having their licence cancellations rescinded) should the convictions be spent pursuant to the operation of the SCA.
The applicant submits that the judge did not consider the impact of the operation of the SCA when determining the factors that informed the decision to sentence the applicant with conviction. Essentially the applicant contends that had the applicant been sentenced without conviction to an adjourned undertaking, his conviction would have become ‘spent’ with immediate effect pursuant to section 7(1)(a) of the SCA. It follows from section 20 of the SCA that a spent conviction does not form part of a person’s criminal record and must not be disclosed to another person (with limited exceptions for law enforcement disclosing spent convictions to persons and bodies specified by the SCA including, relevantly, to the BLA for functions performed only in relation to the Sex Work Act 1994). This would have enabled the applicant to re-apply for his licence immediately. The recording of a conviction means that the applicant must instead wait for 10 years to pass in order to apply to the Magistrates’ Court for his convictions to be spent.[16]
[16]See SCA, ss 9 and 11. Because the applicant was convicted of a ‘serious offence’ within the meaning of the SCA, he can only apply to have his convictions spent once the ‘conviction period’ of 10 years expires.
The applicant contends that the BLA correspondence illustrates that the applicant’s prospects of re-licensing were to be materially affected by the judge’s decision as to whether to impose a conviction. Thus, the applicant argues the judge was wrong to proceed on the basis that the BLA ‘acted on [the applicant’s] plea as a finding of guilt’, because the applicant would have been able to reobtain his licence immediately upon his convictions becoming ‘spent’.
In addition, the applicant contends under particular (b) of proposed ground 1 that the decision of the judge to impose a conviction was unreasonable or plainly unjust and therefore not open. The applicant had no prior convictions, was of previously good character, had entered guilty pleas, had taken positive steps towards rehabilitation and had suffered extra-curial punishment. The judge found that the applicant’s offending fell at the lower end of gravity. The impact of the recording of a conviction on the applicant’s individual real estate licence and the licence of his business also fell to be considered.
Respondent’s submissions
The Respondent argues that the judge appropriately took into account the relevant considerations listed in s 8(1) of the Sentencing Act in determining whether to record a conviction. The applicant’s submission that the recording of a conviction would prohibit him from applying to re-obtain his licence from the BLA for 10 years is not supported by the text of s 31C of the EEA. The section provides a general right to apply for permission to hold an estate agent’s licence or to be employed as an agent’s representative to a person who has been convicted or had found proven against him or her a disqualifying offence. The right is not contingent on the amount of time that has passed since the relevant conviction or finding of guilt. Indeed, at the plea the prosecutor submitted that on his reading of the ‘byzantine’ relevant provisions, it would be open to the applicant to make an application to become re-licenced even if a conviction was recorded.
Accordingly it is argued that the judge did not proceed on a misapprehension or fail to take into account the consequences of the operation of the SCA on the applicant’s re-licensing prospects. The judge was well aware of the BLA position and the fact it had taken the view that the applicant’s licence had been cancelled by operation of law upon his pleas of guilty (as outlined in the letter dated 4 August 2023). This was reflected in his Honour’s comment that the BLA ‘acted on [the applicant’s] plea as a finding of guilt’[17] in revoking his licence.
[17]Sentencing reasons, [82].
The respondent further submits that neither party at the plea invited the judge to consider in any greater detail the provisions of the EAA or their interaction with the SCA. Plainly, it was not necessary for the judge to reach a concluded view as to whether the BLA’s interpretation of the relevant provisions of these Acts was correct, nor as to the applicant’s future re-licensing prosects.
In any event, the applicant’s contention that a spent conviction could only be disclosed by a law enforcement agency to the BLA in situations where the BLA is performing functions under the Sex Work Act 1994 is said to be incorrect. Regulation 5A of the Spent Convictions Regulations 2021 provides for the disclosure of spent convictions to bodies ‘authorised to perform a licensing or registration function’ under any Act in the performance of that function, where a conviction or finding of guilt in relation to an offence means that a person is ‘automatically disqualified or ineligible’ for a licence or registration. Because section 22(2) of the EAA is such an automatic disqualification provision, there would have been nothing to prevent a law enforcement agency from disclosing the applicant’s findings of guilt in relation to the two offences to the BLA, even if the judge had decided not to record a conviction.
In relation to particular (b) of proposed ground 1, the Respondent submits that even if the judge made a specific error in his determination as to whether to record a conviction, no lesser sentence should be imposed. In exercising the discretion whether to record a conviction, the court must consider the nature of the offence and the character and past history of the offender in addition to the economic and social consequences for the offender. The applicant offended on two separate occasions against two young women in the context of a marked power and gender imbalance and age disparity that the applicant exploited, in circumstances where he offended against the second victim after having already been arrested and spoken to by the police in relation to his offending against the first victim. The offending involved considerable planning and had a significant effect upon the victims. Ultimately, the nature of the offences rendered it open to the judge to record a conviction.
Discussion
It is convenient to examine the relevant legislative provisions.
CPA
Section 253B of the CPA establishes that an accused is found guilty of an offence at the moment he or she, on arraignment, enters a plea of guilty to a charge for that offence.
EAA
Section 12 of the EAA requires all persons who act as an estate agent to be licenced. Section 14(1) establishes eligibility criteria for the grant of a licence. These concern age, accreditation and experience. Section 14(5) details persons who are not eligible to be granted a licence. These include a person ‘who is for the time being disqualified’ under the EAA[18] and a person who has, within the last 10 years ‘been convicted or had found proven against’ him or her any offence involving fraud, dishonesty, drug trafficking or violence which was punishable by imprisonment for three months or more.[19] Pursuant to s 21(4)(b) the BLA must grant the licence to an individual applicant if satisfied that he or she ‘is of good character’ and the BLA ‘has received no information that he or she is not a fit and proper person to hold a licence’. Conditions may be imposed upon a licence.[20]
[18]EAA, s 14(5)(a).
[19]EAA, s 14(5)(e).
[20]EEA, s 21A.
Section 22 delineates the circumstances in which a licence is automatically cancelled. Section 22(2)(a) provides for automatic cancellation 30 days after the licenced person ‘is convicted of, or has found proven against him or her, any offence involving fraud, dishonesty, drug trafficking or violence which is punishable by imprisonment for 3 months or more’. Section 22(3) provides that if a person whose licence would otherwise be automatically cancelled by s 22(2) applies for permission under s 31C within the 30 day period, the licence will only be automatically cancelled if the application is withdrawn or refused by the BLA. Section 22A relevantly provides that for a licensee who has been convicted of or has found proven against him or her an offence of the kind referred to in s 22(2)(a), the conviction or finding of guilt for the purposes of s 22 only takes effect on the day on which it is upheld or confirmed, or leave to appeal is refused, by the last applicable court of appeal, or the day after the day on which the last applicable appeal period ends, whichever occurs last.
Section 31C applies to a person who has been convicted of or has found proven against him or her an offence of the kind referred to in s 22(2)(a). Section 31C(2) confers a right on such a person to apply to the BLA for permission to hold an estate agent’s licence. The BLA may give permission if satisfied that it is not contrary to the public interest for it to do so.[21] In doing so it may impose any condition it considers appropriate to ensure the ongoing protection of the public interest.[22] A right to apply to the Victorian Civil and Administrative Tribunal for review of a decision by the BLA is conferred by s 32.
SCA
[21]EAA, s 31C(3).
[22]EAA, s 31D(1).
Relevantly, a ‘conviction’ for the purposes of the SCA is a finding of guilt by a court for an offence (either summary or indictable) whether or not a conviction is recorded.[23]
[23]SCA, s 5.
If the conviction is not recorded by the court it becomes spent either on the day it is not recorded[24] or, if the court imposes a penalty with a condition attached for the conviction, when the person completes all conditions attached to the penalty.[25] In all other cases the conviction becomes spent on the day on which the ‘conviction period’ expires unless it is a serious conviction.[26] A ‘serious conviction’ includes a conviction for a ‘sexual offence’, which has the meaning given by s 4 of the Criminal Procedure Act 2009[27] (except that it does not include an intimate image offence). A conviction for sexual assault is a serious conviction.[28]
[24]SCA, s 7(1(a)).
[25]SCA, s 7(2).
[26]SCA, s 8.
[27]SCA, s 3.
[28]Which appears in subdivision (8A) of Division 1 of Part 1 of the Crimes Act 1958.
In certain circumstances a person with a serious conviction may apply to the Magistrates’ Court for a ‘spent conviction order’ at the expiry of the conviction period for that conviction.[29] Those circumstances include where the serious conviction was for a sexual offence and the sentence imposed did not include a custodial term.[30]
[29]SCA, s 11.
[30]SCA, s 11(1)(b).
A ‘conviction period’ for a person other than a child or young offender is 10 years.[31]
[31]SCA, s 9(1).
Subject to Part 3 of the SCA, a spent conviction does not form part of a person’s criminal record[32] and a person is not required to disclose to another person the existence of a spent conviction.[33]
SC Regulations
[32]SCA, s 20(1)(a).
[33]SCA, s 20(1)(b).
Reg 5A of the SC Regulations provides that a law enforcement agency may disclose a spent conviction as part of the disclosure of the criminal record of a person, or information contained in the criminal record of a person, to a person or body that is authorised to perform a licensing or registration function (however described) under any Act if two conditions are met. First, the person or body is obtaining the criminal record, or information contained in the criminal record, in the performance of the licensing or registration function under an Act. Second, in relation to the function, a person or entity is automatically disqualified or ineligible for the licence or registration (however described) if the person, or an officer of the person or entity, is convicted or found guilty of an offence in relation to which a conviction may be spent under the SCA.
Sentencing Act
Section 8(1) of the Sentencing Act mandates that in exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including: (a) the nature of the offence; and (b) the character and past history of the offender; and (c) the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.
Section 8(2) provides that except as otherwise provided by the Sentencing Act or any other Act, a finding of guilt without the recording of a conviction must not be taken to be a conviction for any purpose.
Discussion
Considering these provisions together in the circumstances of this case, the following may be established.
First, the applicant had a proven finding of guilt of two charges of sexual assault against him made on 20 June 2023 (Criminal Procedure Act, s 253B).
Second, a proven finding of guilt of an offence of a certain calibre is sufficient to trigger the automatic cancellation of an estate agent’s licence 30 days after that finding is made. Sexual assault is such an offence (EAA, s 22(2)(a)).
Third, the date of a proven finding of guilt from which the 30 days runs is the date on which appeal rights are expired or exhausted (EAA, s 22A). An application for leave to appeal against conviction – which includes a finding of guilt by a court, whether or not a conviction is recorded[34] – must be commenced by filing a notice of application for leave to appeal within 28 days after the day on which the person is sentenced (unless any extension of that period is granted under s 313) (Criminal Procedure Act, s 275(1)).
[34]Criminal Procedure Act, s 3.
Fourth, it is unclear why the BLA, in the 4 August 2023 letter, overlooked the operation of s 22A of the EAA. While the applicant’s plea of guilty made the prospect that he would seek leave to appeal against his conviction (that is the finding of guilt) unlikely, the effect of s 22A is quite clear. The 30 day period should have commenced on 3 April 2024 – that is the day after 28 days after the 5 March 2024 sentencing date.
Fifth, irrespective of this error, it is open to the applicant to make an application to the BLA under s 31C of the EAA for permission for himself and Create Vic Pty Ltd to hold a real estate agent’s licence. Such an application can be made at any time. The only difference if it is made within the 30 day period prior to automatic cancellation is it has the effect of staying the automatic cancellation after 30 days unless the application is withdrawn or refused within that period. As a licence granted pursuant to a s 31C application may have conditions imposed on it to protect the public interest, it is open to the applicant to propose appropriate conditions, such as a chaperone condition.
Sixth, it follows that the applicant’s submission before the sentencing judge that the recording of a conviction meant that he needed to wait until the 10 year SCA ‘conviction period’ had expired and apply for and obtain a spent conviction order before he could apply to the BLA for permission to hold an estate agent’s licence was incorrect. So much was apparent from the BLA letters tendered on the plea and the submission made by the prosecutor.
Seventh, if on 5 March 2024 the applicant had received an adjourned undertaking for a period of 18 months without a conviction being recorded, the conviction would not have become spent until the expiration of that 18 month period, assuming the applicant to have completed all the conditions and to have been of good behaviour during that time (SCA, s 7(2)). For the purposes of s 22 of the EAA, the finding of guilt would be reckoned as taking effect on 3 April 2024 (EAA, s 22A) and, unless the applicant made an application pursuant to s 31C of the EAA within 30 days, his licence would have been automatically cancelled on 3 May 2024.
Eighth, it follows that the applicant’s submission before the sentencing judge that a non-conviction disposition would have allowed him to take immediate steps to have his licence restored was incorrect in so far as it was premised on the fact that the conviction would be immediately spent by virtue of the SCA. A non-conviction disposition following the finding of guilt would not have prevented the operation of the automatic cancellation provision under the EAA unless the applicant made an application pursuant to s 31C. And, as discussed above, it was equally open to the applicant to make a s 31C application following the recording of the conviction.
Ninth, pursuant to reg 5A of the SC Regs, if the BLA sought the applicant’s criminal record in relation to a licensing function under the EAA, the finding of guilt for sexual assault was disclosable whether or not a conviction had been recorded. That is, the applicant’s submission that the finding of guilt without a recorded conviction was not disclosable to the BLA as the applicant did not fall to be considered under the Sex Work Act 1994 is incorrect.
Turning then to the first particular of the proposed ground of appeal before the Court, the ‘material consideration’ which it is alleged the judge had failed to have regard to misstates the true position of the applicant vis-à-vis his and his company’s prospects of re-licensing as at the time of sentencing. The applicant had argued for an adjourned undertaking as an appropriate disposition. The judge accepted that argument. The judge rejected the argument that the adjourned undertaking should be imposed without a recorded conviction. Even if the judge had not recorded a conviction, the finding of guilt would not have become spent under the SCA until the completion of all its conditions and the expiry of its term 18 months later. In short, the automatic licence cancellation provisions of the EAA would have operated with respect to the applicant irrespective of the recording of a conviction. In either case, he could avail himself of the s 31C EAA mechanism. And, in either case, if the BLA sought his criminal record in determining that application, the finding of guilt was disclosable.
In this regard, it is to be remembered that both letters from the BLA were before the judge. Each of them informed the applicant that he could – at any time – make a s 31C EAA application.
It follows that the judge did not fail to consider the material consideration alleged.
Turning to the second particular of the proposed ground of appeal, the decision to impose a conviction was neither unreasonable nor plainly unjust. Even if the judge had erred in the manner asserted, it is not reasonably arguable that a lesser sentence – that is a non-conviction adjourned undertaking – should be imposed.
Considering all relevant considerations and, particularly, the three matters delineated in s 8(1) of the Sentencing Act, the offending was against two young women, both of whom were seeking employment from the applicant. The age and power imbalance between the applicant and each of Ms Sandover and Ms Peterson was palpable. Further, while the nature of the assaults themselves fall towards the lower end of objective gravity for the offence of sexual assault, as recognised by the judge, the fact that the applicant offended against Ms Peterson after he had been interviewed by police with respect to the offending against Ms Sandover and nearly 12 months later was very serious. The applicant’s moral culpability was very high. And, as explained above, it was (and remains) open to the applicant to seek for himself and his company to be relicensed as a real estate agent (and to propose appropriate conditions on that licence to protect the public interest.). The finding of guilt, independently of the recording of the conviction, necessitated that he make such an application. In all the circumstances, the applicant’s character, past history and his prospects for rehabilitation are insufficient to establish that the recording of a conviction was unreasonable or plainly unjust.
Conclusion
Leave to appeal is refused.
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