AL HUSSEIN -v- COMMISSIONER FOR CONSUMER PROTECTION [2014] WASC 296

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 296
Case No:	SJA:1042/2014	Heard:	7 AUGUST 2014
Coram:	McKECHNIE J	Delivered:	22/08/14
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal allowed Fine reduced to $5,000 Spent conviction order made
Category:	B
PDF Version

Parties:	HUSSAIN AL HUSSEIN COMMISSIONER FOR CONSUMER PROTECTION
Catchwords:	Consumer protection Unlicensed motor vehicle dealing Extended period Whether fine excessive Whether spent conviction order appropriate Principles in respect of fines Means to pay
Legislation:	Motor Vehicle Dealers Act 1973 (WA), s 30 Sentencing Act 1995 (WA), s 45
Case References:	Lowndes v The Queen (1999) 195 CLR 665 M v O'Neill [2013] WASC 187 Sgroi (1989) 40 A Crim R 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : AL HUSSEIN -v- COMMISSIONER FOR CONSUMER PROTECTION [2014] WASC 296 CORAM : McKECHNIE J HEARD : 7 AUGUST 2014 DELIVERED : 22 AUGUST 2014 FILE NO/S : SJA 1042 of 2014 BETWEEN : HUSSAIN AL HUSSEIN

Appellant

AND

COMMISSIONER FOR CONSUMER PROTECTION

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE B C GLUESTEIN

File No : JO 1758 of 2014

Catchwords:

Consumer protection - Unlicensed motor vehicle dealing - Extended period - Whether fine excessive - Whether spent conviction order appropriate - Principles in respect of fines - Means to pay

Legislation:

Motor Vehicle Dealers Act 1973 (WA), s 30

Sentencing Act 1995 (WA), s 45

Result:

Appeal allowed

Fine reduced to $5,000
Spent conviction order made

Category: B

Representation:

Counsel:

Appellant : Mr A Shuli

Respondent : Mr J L Derby

Solicitors:

Appellant : iLAW Barristers & Solicitors

Respondent : Department of Commerce

Case(s) referred to in judgment(s):

Lowndes v The Queen (1999) 195 CLR 665
M v O'Neill [2013] WASC 187
Sgroi (1989) 40 A Crim R 197

1 McKECHNIE J: While a student and working part time as a taxi driver the appellant thought up a way to boost his income. He would buy cheap cars at auction, do some minor work on them and sell them for a profit.

2 For nearly 18 months, though he did not make much money, the work was steady. However, he overlooked one thing. It was also illegal. When he received a letter from the Commissioner for Consumer Protection he stopped immediately.

3 But it was too late. He was prosecuted and pleaded guilty to breaching the Motor Vehicle Dealers Act 1973 (WA) s 30.

4 He was fined $15,000 and denied a spent conviction order.

5 Being dissatisfied with both outcomes, he appeals to this court.

6 I allow the appeal, impose a fine of $5,000 and make a spent conviction order.

The admitted facts

7 For 18 months between 8 February 2012 and 3 August 2013 the appellant traded extensively in used motor vehicles. He bought 63 vehicles from a number of auction houses and private sellers and subsequently sold 61 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASC 296
Decision Date: 22 AUGUST 2014

CaseChat Overview and Summary

The matter before the court involved a dispute between Al Hussein, the respondent, and the Commissioner for Consumer Protection, the appellant. The respondent was found to have been dealing in motor vehicles without the necessary licence, leading to a fine of $10,000 imposed by the tribunal. The Commissioner appealed the tribunal's decision, arguing that the fine was excessive and that a spent conviction order should be made. The central legal issues before the court were whether the imposed fine was excessive, and if a spent conviction order was appropriate in the circumstances. The court was required to consider the principles governing fines and the respondent's capacity to pay.

The court found that the fine of $10,000 was indeed excessive. In considering the appropriate amount, the court highlighted the need for fines to be punitive, deterrent, and rehabilitative, while also taking into account the respondent's means. The court also determined that a spent conviction order was appropriate, given the respondent's clean record since the offence and the absence of any significant aggravating factors. The court held that the tribunal had not adequately considered the principles governing fines and the respondent's means when imposing the fine, leading to the decision to reduce the fine and make a spent conviction order.

The appeal was allowed by the court, and the fine was reduced to $5,000. In addition, a spent conviction order was made, meaning that the conviction would not need to be disclosed in the future for most employment and other purposes. This outcome reflected the court's view that the original fine was excessive and that the respondent's clean record warranted a spent conviction order. The court's decision ensured that the principles of fining were properly applied and that the respondent's means were taken into account.

Orders

Orders of the court

Appeal allowed

Fine reduced to $5,000

Spent conviction order made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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