Child sex offending Uber driver worked as 'fit and proper' real estate agent

An Uber driver convicted of sexually assaulting a 14-year-old passenger went on to obtain a real estate licence and work as an agent around Auckland.

And the Real Estate Authority say Nitin Mittal is a "fit and proper" person to hold a licence and can still operate as an agent given his conviction it is not related to a "crime of dishonesty".

On Monday the Herald revealed that Mittal was convicted in 2016 of sexually assaulting a 14-year-old boy.

Mittal became a real estate agent after he was convicted of sex offending.

At the time Mittal was an Uber driver and the boy was his passenger.

Mittal claimed in court that the boy "consented" to the sexual activity.

However, in March 2017 Mittal pleaded guilty to one charge of doing an indecent act on a young person.

Judge Philippa Cunningham rejected his application for a discharge without conviction and Mittal was sentenced to sentenced to two months' community detention and 12 months' intensive supervision.

He then appealed the discharge decision, his conviction and sentence.

The Court of Appeal denied the appeal, standing by Judge Cunningham.

Following his conviction, Mittal was served with a deportation liability notice.

The Herald has learned that in April 2018 Mittal obtained a real estate agent's licence.

He then began working at real estate company Wallace and Stratton.

He was dismissed from his role this week after the Herald published details of his offending and failed appeal.

Wallace and Stratton managing director Ben Macky said agents were vetted in a centralised process run by the Real Estate Authority.

"The vetting process includes police and background checks that as a company we have to date had faith in as part of our internal suitability checks," Macky said.

"In relation to Mittal he had been through these checks and issued a real estate salesperson's licence by the Real Estate Authority and clearly, we had no knowledge of his offending.

"We will be seeking an explanation from the Real Estate Authority as to how the checks did not identify Mittal as a totally unsuitable person to hold such a licence or to be a part of our business.

"Mittal no longer is engaged in any way by our organisation, we feel the same way about his offences as the communities we work in do and are disappointed and very concerned that the checks and balances that the REA have in place have clearly come up short in this instance."

Mittal still holds an active licence and the REA will not take any action.

In fact, it says there is no issue with Mittal holding a licence and stood by its decision to issue him with one.

According to REA criteria for agents, to obtain a licence a person must be "able to demonstrate that you are honest" and "be a fit and proper person".

"Being a fit and proper person means meeting a certain standard of conduct and character," the website states.

"It's up to you to satisfy the REA Registrar that you are fit and proper.

"When applying for a new licence, you should tell us about any criminal convictions that haven't been 'clean slated' (wiped from your record or legally withheld from us) — this includes driving-related offences."

You cannot obtain a licence if you have been convicted "of any crime involving dishonesty in the past 10 years".

The REA also carries out a police vetting check.

REA chief executive, Kevin Lampen-Smith said crimes of dishonesty "automatically exclude an individual from holding a real estate licence".

"In all other matters, such as drink-driving convictions, fraud, or other convictions, the REA is required by the Act to determine whether an individual is 'fit and proper' to hold a licence," he said.

"The decision to grant a licence is taken very seriously."

Lampen-Smith said since coming into existence in 2009 the REA has declined a number of licence applications from individuals not seen to be fit and proper.

"A number of these decisions were appealed to the Real Estate Agents Disciplinary Tribunal and were overturned," he said.

"As a result of clear guidance provided by READT in these cases over the years, REA has amended its position on what persons pass or fail a fit and proper test.

"Each case is reviewed individually and determined on the facts."

Kevin Lampen-Smith, CEO of Real Estate Authority. NZME photograph

Lampen-Smith said the READT has stated that the fit and proper assessment "is necessarily forward looking".

"The function of the court is not to punish the applicant for past conduct," it said.

Further is stated "it is important to look at the facts of the case in the round, and not just regard to the fact of a previous conviction or convictions".

"In particular regarding a sexual conviction, READT has previously overturned the declination of a licence to an individual by REA to a person with more than one sexual conviction and other convictions," said Lampen-Smith.

"As a result of the precedent set by that decision, and also the particular circumstances of (Mittal's) application - which were fully researched, including review of the District Court sentencing decision and review of a relevant expert's risk assessment - REA chose to issue the licence."

Lampen-Smith was not aware of Mittal's pending deportation and said it had no bearing on him holding a licence.

"REA is not aware of any particular demands or deportation orders," he said.

"Deportation is an immigration issue and is not part of the legal framework in deciding whether or not a person is fit and proper to hold a real estate licence."

Victim advocate Ruth Money, who works alongside many survivors of sexual offending said the decision to grant Mittal a licence was appalling.

"The REA's website says it's role is to regulate the industry, increasing professionalism and consumer protection," she said.

"This decision is completely at odds with their role.

"I think it's a grave concern… This man assumedly had keys to people's homes, where children live - what the hell?

"The decision is also at odds with the community's wishes which are to be kept safe by authorities."

Money called for an independent review of the REA process.

Mittal failed to respond.

Earlier this week he told the Herald he wanted to tell his story about the Uber incident.

He claimed the teenage victim instigated the offence and coverage of his appeal had adversely affected his family.

Mittal, who described himself as an agent of "integrity, positivity, diligence and creativity", said he was due to be deported within a month.

It is understood he was born and raised in India.