Chief Executive, Department of Justice and Attorney General v Lake [2014] QCAT 282

CITATION: Chief Executive, Department of Justice and Attorney General v Lake [2014] QCAT 282 PARTIES: Chief Executive, Department of Justice and Attorney General (Applicant) v Marissa Karen Lake (Respondent) APPLICATION NUMBER: OCR252-13 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Paratz DELIVERED ON: 23 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Marissa Karen Lake is disqualified from holding any form of licence or certificate of registration, and from being an executive officer of a corporation that holds a licence, under the Property Agents and Motor Dealers Act 2000, for a period of three (3) years from the date of this Order. CATCHWORDS: Where an assistant property manager was convicted of fraud and stealing as a servant – where the nett amount involved was $2,932.86 – where no material was submitted in mitigation Property Agents and Motor Dealers Act 2000 (Qld), s 496(1), s 529 The Chief Executive Department of Tourism, Fair Trading and Wine Industry Development v Ms Kate Maree Matheson [2006] CCT PD011- 06 The Chief Executive Department of Tourism, Racing & Fair Trading v Leanne Judith Turner [2003] PAMDT X011-03 -- 1 of 6 -- 2 OCR217-11 QCAT 20 September 2012 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Marissa Lake was employed by Kawana Coast Realty Pty Ltd as a Property Manager’s Assistant. She was registered as a Real Estate Salesperson from 21 October 2011 until 21 October 2012, holding a certificate pursuant to the Property Agents and Motor Dealers Act 2000 (Qld). [2] The Chief Executive, Department of Justice and Attorney General, filed an application in the Tribunal on 4 October 2013 to start disciplinary proceedings against Ms Lake. [3] Ms Keira Staehr supplied a statement in relation to these matters. She said that Ms Lake was employed to fulfil her role whilst she was on maternity leave. [4] Mr Geoffey Batten, the licensee and director of Kawana Coast Realty Pty Ltd also supplied a statement. He said that Ms Lake was employed from 26 September 2011 until 18 April 2012 when she was terminated from employment for poor performance. [5] Her role had included receipting rent and bond lodgments, maintaining a rent arrears list, daily reconciliations and mid-month and end of the month disbursements to property owners and trades people. Cash handling was involved in the process. She was also responsible for completing the reports outlining monies received which had to be banked immediately. [6] Ms Lake had rented a property through her employer’s real estate agency, on a six month lease which was due to expire on 22 April 2012. On 23 April 2012, Ms Staehr conducted an inspection of the unit, and later that day reviewed the tenant’s ledger and discovered discrepancies, and saw that the rent was only paid until 23 February 2012. [7] Ms Staehr sent a text to Ms Lake querying the rent, but received no reply. She sent Ms Lake her final wages and a separation certificate. On 23 April 2012 she put a stop on the cheque after receiving advice from the firm’s accountants that monies had been misappropriated. Ms Lake rang her on that day, was angry that the cheque had been stopped, and denied knowing about any issues. [8] Mr Batten said that an audit of the trust account conducted on 24 April 2012 by the firm’s accountant showed that there were rental arrears in the name of Ms Lake for $2,907.86 and that there was a cash amount of $1,405.00 allegedly misappropriated. This made a total of $4,312.86 -- 2 of 6 -- 3 owing to the firm. A bond refund of $1,380.00 for the unit was received from the Residential Tenancies Authority, leaving a balance of $2,932.86. [9] The cost of the audit report was $3,380.00. [10] The last contact Ms Staehr had with Ms Lake was on 26 April 2012 when she received a text message from her. She attended the Kawana Waters police station that day and reported the matter. [11] Ms Lake was charged on one count of stealing by a clerk or servant, and two counts of fraud of dishonestly gaining a benefit as an employee under the Criminal Code. She appeared in the Caloundra Magistrates Court on 12 December 2012 and pleaded guilty to all three counts. [12] The Court ordered on all three charges that she perform unpaid community service of 180 hours to be performed within 12 months; be placed on probation for a period of two years; pay compensation of $3,380.00 within six months, in default one month imprisonment; and make restitution of $2,932.86 within three months. [13] The details of the offences were that she had credited $2,907.86 to her own tenant’s account without paying that amount, and had issued three trust account receipts totalling $1,405.00 purported to be for cash received by the agency but which was not paid into the trust account. [14] The Chief Executive seeks orders that Ms Lake be disqualified for a period of 10 years from holding a licence or registration certificate; and from being the executive officer of a corporation that holds a licence. [15] The application was served on Ms Lake by the Chief Executive on 17 October 2013 by post to her last known residential address. [16] Directions were made by the Tribunal on 15 October 2013 requiring Ms Lake to file any response and material by 15 November 2013, and providing for a decision to be made on the papers after 29 November 2013. No material was filed by her in response to those directions. [17] On 2 December 2013, Ms Lake telephoned the Registry in response to an enquiry call from them as to supply of material by her, and said that she was previously unaware of the application. The matter was then set for a Directions Hearing on 12 February 2014. [18] Ms Lake participated in the Directions Hearing on 12 February 2014. Directions were made that Ms Lake must file any response and material by 14 March 2014, and that the Application would be determined on the papers on the written submissions received after 28 March 2014. [19] No material was filed by Ms Lake as directed on 12 February 2014. [20] This is the decision on the papers, made on the written submissions received. -- 3 of 6 -- 4 Grounds for disciplinary proceedings [21] Ms Lake was convicted of stealing as a servant contrary to section 398(6) of the Criminal Code, and of fraud dishonestly gaining benefit as an employee contrary to section 408C of the Criminal Code. Both of these are indictable offences pursuant to Section 3 of the Criminal Code. [22] Section 496(1) of the Property Agents and Motor Dealers Act 2000 (Qld) provides that grounds for starting a disciplinary proceeding against a licensee or registered employee include: (a) the licensee or employee…has been convicted of an indictable offence … (g) (iii) the licensee has, in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way [23] Ms Lake was convicted of an indictable offence, and her conduct was unprofessional. There are therefore clear grounds for starting a disciplinary proceeding, and I consider that an order pursuant to s 529 of the Act should be made. Appropriate order [24] Ms Lake has not provided any material in relation to these matters. She has not given any explanation for her conduct, or raised any matter in mitigation of penalty. [25] In the absence of any explanation from Ms Lake, or any indication of remorse, or of an understanding of the seriousness of the offences, or any insight into her personal situation, I am unable to take any of those matters into consideration. [26] The Chief Executive has sought a period of disqualification of 10 years. I have been referred to several cases as precedents. [27] In Matheson1 the amount involved was $13,200 over a three month period. She was convicted of stealing as a servant, and a suspended sentence of eight months imprisonment was imposed. She was making restitution. A disqualification period of 10 years was ordered plus costs of $1,335.00. [28] In Turner2 the amount involved was $12,333. She was convicted of stealing as a servant, and a suspended sentence of two years imprisonment was imposed. She expressed remorse and was making restitution. A disqualification period of 10 years was imposed plus costs of $250. 1 The Chief Executive Department of Tourism, Fair Trading and Wine Industry Development v Ms Kate Maree Matheson [2006] CCT PD011-06. 2 The Chief Executive Department of Tourism, Racing & Fair Trading v Leanne Judith Turner [2003] PAMDT X011-03. -- 4 of 6 -- 5 [29] The Chief Executive has also referred me to a previous QCAT matter Case Number OCR 217-11. That case was quite similar to this case. An assistant property manager used her position as an employee of a real estate agency to misappropriate $2,665.00 from their employer’s trust account. She was convicted of Stealing as a servant in 2010, and was ordered to perform 60 hours of community service and placed on a probation order for a period of nine months, but no conviction was recorded. [30] A disciplinary proceeding was brought under the Act. The facts were agreed. The Chief Executive initially sought a reprimand and a disqualification period of three years as well as training and compensation of $38.77 as lost interest. [31] The property manager had expressed remorse and made full restitution, and was subsequently re-employed by her employer. It was submitted on her behalf that a period of disqualification would mean she was unable to work in the industry, her income was $60,000 a year, and that this would effectively equate to a penalty of $180,000. [32] The Chief Executive considered the submissions made on her behalf, and consent orders were put forward which the Tribunal agreed with and ordered on 20 September 2012. The order was that the property manager was disqualified for six months, a reprimand was issued, and she was ordered to pay compensation of $38.77. [33] In this matter, Ms Lake has not put forward any of the type of material in mitigation that was considered in that case. She has not returned to the industry on the material available to me, or shown a desire to do so. She has repaid the balance of the amount misappropriated of $2,932.86, but the amount of compensation of $3,380.00 for the audit was referred to SPER3. [34] A similar factual situation, and similar amounts of money, arise in this matter as in OCR217-11. I consider that in the absence of the mitigating factors that arose in OCR217-11, that the original submissions of the Chief Executive in that matter in seeking a disqualification period of three years, are apposite and appropriate in this matter. [35] Ms Lake has been convicted of indictable offences and has been convicted and sentenced by the Magistrates Court. She has been required to pay the costs of the Audit. The amount involved in the misappropriation (after deduction of the bond) is $2,932.86, which is a notable but not very large amount of money. Her actions in seeking to manipulate her own rent, and in stealing, appear to be rash and ill-considered. [36] It is appropriate that she should be disqualified for a period of years for the protection of the public, and to reinforce the seriousness of the offences to her. I consider that a period of 10 years as sought in the submissions is 3 Stated in an email from Geoff Batten to the Stuart French (OFT) 8 August 2013. -- 5 of 6 -- 6 too severe in the circumstances, and that a period of three years, as discussed, is more appropriate. [37] I order that Ms Lake be disqualified for a period of three (3) years from the date of this Order from holding a licence or registration certificate, and from being an executive officer of a corporation that holds a licence, under the Property Agents and Motor Dealers Act 2000. -- 6 of 6 --