Jaenke v Department of Justice and Attorney-General

This matter concerned the proper construction of the definition of a “serious offence” in s 77(1)(a) Property Occupations Act 2014. By operation of 77(1)(a) a real estate agent’s licence is automatically cancelled if they are convicted of a serious offence. The applicant was a real estate agent and auctioneer who was convicted on a plea of guilty of having dishonestly converted $235,000 in trust funds to his own use. The prosecutor had made a procedural decision to proceed by way of a summary proceeding in the Magistrate’s Court which had the effect of reducing the maximum penalty for the offence. The Court held that on a proper construction, regardless of the procedural election made, the applicant was convicted of a serious offence.

Bowskill CJ

29 July 2024

Relevantly, the applicant had been convicted on his plea of guilty of wrongful conversion pursuant to s 206(2)(a) Property Occupations Act 2014 and he was sentenced to 6 months’ imprisonment, wholly suspended for two years with a conviction recorded. The offence carries a maximum penalty of 1,000 penalty units or 5 years imprisonment and it is an indictable offence. [4]. However, the prosecutor elected to proceed against the applicant by way of a summary proceeding in the Magistrates Court. Pursuant to s 225(7) the “maximum penalty that may be imposed on a summary conviction of an indictable offence is 200 penalty units or 1 year’s imprisonment”. [7]. Subsequently, the respondent notified the applicant that his licence had been cancelled. [1].

The legislation

Section 77(1)(a) Property Occupations Act 2014 provides:

“77Immediate cancellation

(1)A licensee’s licence is cancelled on the happening of any of the following events—

(a)the licensee is convicted of a serious offence; …”

As defined in Schedule 2 to the Act:

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

(a) an offence involving fraud or dishonesty;

(b) an offence involving the trafficking of drugs;

(c) an offence involving the use or threatened use of violence;

(d) an offence of a sexual nature;

(e) extortion;

(f) arson;

(g) unlawful stalking, intimidation, harassment or abuse.”

The parties’ submissions

Citing Dunlop v Chief Executive, Department of Justice and Attorney-General (2020) 4 QR 572 the applicant argued that on the proper construction of s 77(1)(a), he had not been convicted of a “serious offence” since at the time of his conviction the relevant offence was not punishable by “3 or more years imprisonment”. In those circumstances he argued that his licence was not immediately cancelled under s 77 of the Act. He sought declarations to that effect pursuant to s 43 Judicial Review Act 1991. [8].

Conversely the respondent argued that properly construed, whether an offence is a “serious offence” is gauged by reference to “the intrinsic gravity of the offence, manifested by the maximum penalty prescribed by Parliament for the offence, and not by reference to a jurisdictional limit imposed consequent upon a procedural election”. [9].

The decision in Dunlop v Chief Executive, Department of Justice and Attorney-General

In Dunlop v Chief Executive, Department of Justice and Attorney-General (2020) 4 QR 572 the Court held that upon the proper construction of the Property Occupations Act 2014, and in the circumstances in which the applicant’s conviction occurred in the Magistrates Court; the applicant had not been convicted of a serious offence within the meaning of the Act since he was not convicted of an offence punishable by three or more years imprisonment. The Court declared that accordingly the applicant’s resident letting agent licence was not cancelled by operation of s 77 of the legislation given the conviction was not an event to which that provision applied.

Consideration

The Chief Justice did not follow Dunlop v Chief Executive, Department of Justice and Attorney-General (2020) 4 QR 572. Whilst she accepted that Dunlop involved an application of a similar nature [10] she determined that the Court in Dunlop was not correct as to the construction of s 77(1) and the meaning of “serious offence”. [18], [52].

Her Honour held as follows:

1.The use of the word “serious” in the phrase “serious offence” is properly to be informed by both the nature of the offence and the potential penalty which the offender faces. It is an objective enquiry, which is not solely directed at the actual punishment imposed. Otherwise the definition of “serious offence” would refer to an offence “punished by...” a particular penalty. [54].

2.As for the wording in the definition of “serious offence”, the word “offence” can be construed either as referring to the relevant crime or to the offending involved. In both cases, the gravity of the offence is objectively determined by considering the nature of the offence and the maximum penalty prescribed by Parliament for that offence, as opposed to subjective or individual factors (such as might inform the particular sentence imposed by a court). [55].

3.The objective seriousness of an offence is not influenced to any degree by a decision a prosecutor forms as to the forum in which to prosecute the offence. [56].

4.On the proper construction of s 77(1)(a) Property Occupations Act 2014 together with the definition of “serious offence”, the applicant had indeed been convicted of a “serious offence” since he was convicted of an offence involving fraud or dishonesty punishable by three or more years imprisonment, as evidenced by the maximum penalty prescribed by the offence-creating provision. [61].

5.The contrary interpretation adopted in Dunlop – to construe “punishable by” as requiring an examination of the penalty which may be imposed at the time of conviction, depending upon the procedural election which has been made – does not enjoy the support of an analysis of the words of the statute. [60].

Disposition

The application was dismissed. [62].

A Jarro