Commissioner for Consumer Affairs v Roberts No. Dcaat-99-454

[2000] SADC 75

COMMISSIONER FOR CONSUMER AFFAIRS v ROBERTS
[2000] SADC 75

Judge Anderson, Assessors Hewitt & Potter
Administrative and Disciplinary Division

1. Geoffrey Allan Roberts is charged on Complaint with nine breaches of the Second-hand Vehicle Dealers Act 1995 (“the Act”). These are alleged to have occurred during a course of conduct which lasted from October 1997 until July 1998.

2. By a Statement of Agreed Facts signed on behalf of the Complainant Commissioner for Consumer Affairs and by the Defendant on 12 April 2000, each breach alleged in the Complaint is admitted.

3. Mr Roberts confirmed these admissions from the Bar table when proceedings commenced on 13 June 2000.  Consequently, the matter proceeded with submissions relevant to the factual circumstances in which the breaches were committed and as to penalty.

4. Counts 1 and 2 relate to the Defendant carrying on business when not licensed pursuant to the Act. It is agreed that he so acted whilst unlicensed. The Defendant has never held a licence pursuant to the Act. It seems that at one time he was a licensed second-hand dealer, but not licensed to deal in motor vehicles.

5. In the period of time referred to in Counts 1 and 2, the Defendant sold 14 vehicles for a gross profit of $18,330.  We accept that his net profit could be as little as one third of this figure after meeting costs associated with reconditioning and sale.  He offered 17 vehicles for sale.

6. The balance of the Complaint alleges seven breaches of s34 of the Act which are admitted by the Defendant in the Statement of Agreed Facts. These counts related to the winding back of the odometers of seven of the sold vehicles referred to in Counts 1 and 2.

7. A breach of s34 attracts a fine which must not exceed $5,000. This penalty was increased from $4,000 by an amendment which took effect on 29 May 1998. There are six offences prior to the amendment of penalty and one since.

8. The Complaint alleges that the admitted behaviour of the Defendant is proper cause upon which to take disciplinary action against him.

9. The admission by the Defendant of a breach of s7 of the Act is sufficient for there to exist proper cause for the taking of disciplinary action against him and we so find. The range of disciplinary action which may be taken in such circumstances is set out in s31 of the Act. That section allows for several orders to be made, one of which is a fine not exceeding $20,000. Prior to the amendment to which we have referred, that figure was $8,000.

10. Even though there is only one course of conduct upon which proper cause for disciplinary action is based, it is divided by time into Counts 1 and 2 to accommodate the amended maximum penalty.

11. It is appropriate, because there is only one course of conduct, to impose only one penalty relating to disciplinary action, but, in so doing, to allow for the varying maximum penalties.

12. In his submissions, Mr Roberts told of his involvement with selling new cars and running motor vehicle wrecking yards for 32 years.  He said that he had no familiarity with selling second-hand vehicles and assumed his old second‑hand dealers licence was sufficient to enable him so to do.  That is a submission which we simply reject.  There is no basis upon which a second‑hand dealers licence relating to the parts of wrecked vehicles can be said to be relevant to the sale of second‑hand vehicles.  It defies credulity that a person associated with the car industry for 32 years does not know of the need to be appropriately licensed to deal in second‑hand motor vehicles.

13. Mr Roberts said that following a marriage breakdown and some bad investment decisions, he was in need of funds and the process of buying vehicles, reconditioning them and then selling them was advised to him as a method of recouping his financial position.  We were told that all reconditioning work, including interfering with the odometers was undertaken by a person called “Dave”, who is now deceased.  No other information about “Dave” was offered.  Mr Roberts said he did not know that the odometers had been altered until spoken to in the course of the investigation of his activities.

14. This submission is also rejected.  There is clear evidence that Mr Roberts accepted the vehicles upon initial purchase when the odometer reading was stated upon the Form 9 which he signed.  He has admitted advertising the vehicles with significantly lower odometer readings.  Again, it defies belief that a person with such long general experience of the motor vehicle industry as the Defendant had, should consistently fail to notice such a variation.  The overwhelming inference is that the Defendant was a wholesale purchaser who then retailed his purchases in the admitted hope of a quick profit.

15. The Defendant told intending vendors a variety of reasons as to why he was selling the respective vehicles.  They were all untruthful and went to facilitating the sale of a particular vehicle in order to go some way towards reversing his financial circumstances.  Over such a short period such a number of sales using false dealer licensing numbers and false reasons for sale lead to no other conclusion but that the Defendant was knowingly taking part in a fraudulent endeavour.

16. We accept that his personal circumstances are now stringent.  There is no need to otherwise detail his financial situation.  However, the Parliament, by its 1998 amendment, has made it plain that activity such as that undertaken by the Defendant should continue to attract a significant sanction.  Such a sanction is to be a general deterrent to others who might be so minded to act and to protect the public from such persons.

17. The financial penalties which are imposed have regard to the fact that the Defendant has admitted the offences and, as the proceedings are at least quasi criminal, some allowance must be given for what was the equivalent to a prompt plea of guilty.

18. Pursuant to s31 of the Act, as there exists proper cause for disciplinary action, the Defendant is fined $5,250. We have notionally divided this fine between Count 1, where there was much greater activity - more offering for sale and more sales - as to $3,000 and Count 2, where many fewer vehicles were offered and only two sold and allowing for the affect of the amendment, as to $2,250.

19. Each of Counts 3 - 8, being pre‑amendment offences, are to attract a fine of $1,000.

20. Count 9 is to attract a fine in the sum of $1,300.

21. The total financial penalty is $12,550.

22. In addition, and pursuant to s31(1) (e), (f) and (g), the Defendant is disqualified from being licensed under the Act, prohibited from being employed or otherwise engaged in the business of a dealer and prohibited from being a director or having an interest in a body corporate that is a dealer.