Valentine v Chief Executive, Department of Justice and Attorney General

[2012] QCAT 674

CITATION: Valentine v Chief Executive, Department of Justice and Attorney General [2012] QCAT 674

PARTIES:	Alan Valentine (Applicant)
v
Chief Executive, Department of Justice and Attorney General (Respondent)

APPLICATION NUMBER: OCR193-12

MATTER TYPE: Occupational regulation matters

HEARING DATE: 17 December 2012

HEARD AT: Brisbane

DECISION OF: David Paratz, Member

DELIVERED ON: 18 December 2012

DELIVERED AT: Brisbane

ORDERS MADE: The decision of the Chief Executive made on 24 April 2012 to refuse the application of Alan Valentine for a Motor Dealer’s Licence is confirmed.

CATCHWORDS:

Motor dealer’s licence – meaning of “serious offence” – suitable person

Property Agents and Motor Dealer’s Act 2000, ss 26, 28

Meissner v R (1005) 184 CLR 132
The Chief Executive, Office of Fair Trading v Fuller [2008] QCCCTPAMD41

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Alan Valentine represented by Mr D Sushames of Counsel instructed by Harris Sushames Lawyers

RESPONDENT: Chief Executive, Department of Justice and Attorney-General represented by Mr P Rashford

REASONS FOR DECISION

1. This is an application by Mr Valentine for review of a decision of the Chief Executive of the Department of Justice and Attorney-General to refuse an application by Mr Valentine for a Property Agents and Motor Dealers Licence (Motor Dealer).

2. The application for the licence was lodged by Mr Valentine on 5 April 2012.

3. The Chief Executive refused the application on 24 April 2012 on the grounds that the applicant was not a suitable person to hold a registration certificate, and the circumstance relied upon was that the applicant had been convicted of receiving tainted property at the Ipswich Magistrates Court on 14 December 2010 which is a serious offence under the Property Agents and Motor Dealers Act 2000 (the PAMDA Act).

4. Mr Valentine lodged an application for review of the decision of the Chief Executive in the Tribunal on 25 May 2012.

5. The matter was heard before me on 17 December 2012.  Both parties advised that they considered there were only questions of law to be determined, and that no oral evidence was to be given.

6. Section 19(c) of the Queensland Civil and Administrative Tribunal Act2009 (QCAT Act) provides that in exercising its review jurisdiction, the Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed, and by s 20(2) that the review is by way of a fresh hearing on the merits.

7. I therefore stand in the shoes of the decision-maker in assessing the application for a licence, and am to have regard to all relevant matters that a decision-maker should have regard to.

8. Mr Valentine has criminal convictions recorded against him as follows:

   19-07-2010 – Ipswich Magistrates Court

   – Unlawful possession of weapons – Weapons Act

   –      Authority required to possess explosives – Explosives Act

   –      On all charges Fined $400.00

   14-12-2010 - Ipswich Magistrates Court

   - Receiving tainted property – Criminal Code

   - Unlawful possession of suspected stolen property – two charges – Summary Offences Act

   -       On all charges Fined $500.00

9. There was discussion at the hearing as to another matter in about mid 2011 involving the PAMDA Act, which Mr Valentine referred to in a hand-written note which was attached to his licence application, and which he described as a conviction. I asked for submissions on this matter from the parties. There appears to be uncertainty as to whether a conviction was recorded in regard to that matter, and the Chief Executive was not relying upon it on this occasion. Having regard to the uncertainty as to the status of the result, and having regard to s 12(3) of the Penalties and Sentencing Act 1992, I am not going to take that matter into consideration as a conviction for these purposes.

10. The PAMDA Act states certain qualifications upon applicants for a licence. Section 26 (1)(b) provides that:

    “(1) An individual is not a suitable person to hold a licence if the person is –

    (b) a person who has been convicted, in Queensland or elsewhere, within the preceding 5 years of a serious offence”

    Section 28 (1) further provides that:

    “(1)    The chief executive must, when deciding whether a person is a suitable person to hold a licence, consider the following things –

    (a) the character of the person

    (g) for an individual –

    (i)      the person’s criminal history”

11. In making its decision to refuse the application for a licence, the Chief Executive pointed to the disqualification effected by s 26(1)(b), as it argued that Mr Valentine had been convicted of a “serious offence” within the 5 year period by virtue of the conviction for receiving tainted property on 14 December 2010.

12. In his submissions, Counsel for Mr Valentine argued that the conviction was not for a “serious offence” as defined in the PAMDA Act.

13. The PAMDA Act defines “serious offence’ in Schedule 2 as:

    “serious offence means any of the following offences punishable by 3 or more years of imprisonment-

    (a)   an offence involving fraud or dishonesty”.

14. Mr Valentine was convicted, on his plea of guilty, under s 433(1) of the Criminal Code:

    “A person who receives tainted property, and has reason to believe it is tainted property, commits a crime.

    Maximum penalty –

    (d)     otherwise – 7 years imprisonment”

15. Mr Valentine’s counsel argued that it is possible that a person may receive tainted property innocently.  He submitted that I have to be satisfied that there was fraud or dishonesty on the part of Mr Valentine, not on the part of somebody else.  He conceded that this was “not an easy argument” and was a novel argument.

16. Mr Valentine’s counsel further submitted that it was open to look behind the conviction, and Mr Valentine’s guilty plea, to assess the criminality of the applicant.

17. In Meissner v R (1005) 184 CLR 132, the court at [22] quoted with approval the words of Lawton LJ in Inns that:

    “The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt.”

18. Thomas J made it clear in The Chief Executive, Office of Fair Trading v Fuller [2008] QCCCTPAMD41 that a decision maker is bound by the prescription in s 26 of the PAMDA Act, and that the tribunal has no discretion to disregard a subsisting conviction of the prescribed kind. In that case, he went on to consider the circumstances of the offence, but only so far as it impacted on his discretion as to penalty beyond the minimum prescribed period.

19. In this matter, the transcript of the plea hearing before the magistrate has been provided in the submissions.  Mr Valentine’s counsel made these comments:

    “Your honour and I am instructed and am well aware because I have actually been around to my client’s property and that he is a bit of a wheeler and dealer and he does have a lot of property most of it these items there have all been obtained through various sources.  He’s a bit of short compass.  He’s the sort of fella that doesn’t ask too many questions gets offered something cheap and he buys it.  He really wasn’t aware at the time but accepts he should have taken more care and should have a reasonable suspicion when these things drop in his lap.”

20. The provision of the Criminal Code in question significantly includes the expression “and has reason to believe it is tainted property”.  Mr Valentine pleaded guilty to that provision.  As commented on in Meissner, no further proof is required.  This leads to a conclusion that Mr Valentine had reason to believe that the property was tainted, and acquired it nevertheless.

21. The submissions made in mitigation on the plea of guilty, that Mr Valentine “doesn’t ask too many questions” are consistent with the conclusion that he had reason to believe the property was tainted, in that he didn’t ask because he was suspicious and didn’t want to know.

22. His actions in proceeding with the acquisition, when he had reason to believe the property was tainted, were dishonest.

23. I further note that section 581 of the Criminal Code, which has the heading “Offences of Dishonesty” refers in s 581(e) specifically to “unlawfully receiving anything under section 433”, and thereby implicitly defines the offence as one of dishonesty.

24. I therefore find that the offence of which Mr Valentine was convicted, of receiving tainted property, is an offence involving dishonesty, is punishable by 3 or more years of imprisonment, and is therefore a “serious offence” as defined in the PAMDA Act, and comes within s 26(1)(b).

25. Having concluded that s 26(1)(b) applies, it is a bar to the grant of a licence, and it is not necessary to look further into the suitability of Mr Valentine under the provisions of s 28, other than to say that serious questions would arise having regard to his criminal history which would worry a decision-maker and quite possibly lead to an refusal on that basis.

26. I confirm the decision of the Chief Executive made on 24 April 2012 to refuse the application of Mr Valentine for a motor dealer’s licence, and order accordingly.