Commissioner for Fair Trading v Diab

[2006] NSWSC 1066

CITATION:	Commissioner for Fair Trading v Diab [2006] NSWSC 1066 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3 July 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
EX TEMPORE JUDGMENT DATE:	07/03/2006
DECISION:	On each of the charges a non-parole period of nine months commencing on 9 September 2006 and concluding on 8 June 2007. The balance of the term commences on 9 June 2007 and expires on 8 March 2008. ; The offender is to be released on parole on 8 June 2007. Upon his release on parole he is to be supervised by the Probation and Parole Service.
CATCHWORDS:	Sentence - contempt - breach of orders under Fair Trading Act 1987 - earlier convictions and sentences for offences under Crimes Act 1900 - need to avoid double counting.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 s44 Fair Trading Act 1987 s65 Home Building Act 1989 s138 Supreme Court Rules Part 55
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610
PARTIES:	Commissioner for Fair Trading (Plaintiff) Ahmad DIAB (Defendant)
FILE NUMBER(S):	SC 15729/05
COUNSEL:	Mr R Wilson (Plaintiff) Mr J Stratton SC (Defendant)
SOLICITORS:	D Catt (Plaintiff) Self-represented (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
APPLICATIONS LIST

ADAMS J

MONDAY 3 JULY 2006

15729/05 COMMISSIONER FOR FAIR TRADING v AHMAD DIAB

SENTENCE

1 HIS HONOUR: On 1 February 2006 the offender was ordered by this Court not to do certain work, to contract with any person to do the work, to represent that he was prepared to do the work, to attend to any person's residence for any purpose in any way connected with the work, to receive any payments for the work, to use a business name implying that he was prepared to do the work or otherwise representing that he would do so, or was able to do so. Other cognate orders were made. These orders were made under s138 of the Home Building Act 1989 (HBA). The work, in substance, was connected with undertaking painting and similar activity on behalf of householders.

2 Despite those orders, of which he was well aware, the offender undertook a number of activities which were prohibited. He did so within days of the orders having been made. I set out below the facts relating to the offender’s activities.

36 charges of contempt under Part 55 of the Supreme Court Rules in relation to orders of Justice James of the Supreme Court on 1 February 2006 (the “orders”)

Background:

3 On 1 February 2006 before Justice James of the Supreme Court (the “injunctive proceedings”) the Commissioner for Fair Trading (the Commissioner) successfully obtained injunctions against the defendant for certain conduct relating to the defendant’s work as a residential painter pursuant to s138 of the HBA and s65 of the Fair Trading Act 1987 (FTA).

4 The Commissioner first issued the defendant with contractor license no. 136701C in the category of painting (the “license”) on 2 August 2002 and renewed the license on 30 June 2003 and 19 July 2004.

5 The offending conduct under the HBA and the FTA relied upon by the Commissioner in the injunctive proceedings alleged that since late 2003 the defendant:

(i) received deposits in excess of the statutory maximum (10% of the total contract price where the contract was for less than $20,000), s8 HBA;

(ii) performed residential building work and received payments under contract whilst uninsured, s92 HBA;

(iii) contracted to do work where the contract did not comply with the statutory details required under s.7 of the HBA, s7A HBA;

(iv) whilst licensed, breached statutory warranties in contracts, s18B and s51(1)(c);

(v) whilst licensed, failed to comply with rectification orders and orders of the Consumer, Trader and Tenancy Tribunal, s51(2)(b) & (c);

(vi) following suspension and subsequent disqualification of his license by Fair Trading on 29 April 2005 and 17 August 2005, respectively, contracted without a license, s4 HBA, and misrepresented as to holding a contractor’s license, s17 HBA;

(vii) engaged in misleading and deceptive conduct, such as placed advertisements for painting work in other people’s names and held himself out as having licenses under the HBA, insurances, qualifications and associations with Fair Trading which he did not have, s42 FTA;

(viii) accepted payment without intending to supply services, s53 FTA.

6 In general terms, the Commissioner alleged that the defendant engaged in an ongoing course of conduct. The conduct typically consisted of the defendant placing advertisements for painting services in a local newspaper, often in the name of another person and with a fictitious or someone else’s license number (living and deceased). The defendant attended the homes of consumers who responded to the advertisement, claimed expertise and reliability, and presented misleading documentation, quotations or invoices, usually in someone else’s name. The defendant then required payment of a deposit usually in excess of 10% and sometimes the entire contract amount, before work was commenced. In most cases, work was never commenced. In some case, a small amount of work was commenced before being abandoned. In some rare cases, the majority of the work was completed, but to such a poor standard that it required substantial rectification.

7 At the time of the injunctive proceedings, the Commissioner relied upon allegations that there were sixteen consumers with monetary orders for compensation all still outstanding against the defendant. The Commissioner also relied upon convictions against the defendant on 15 and 29 September 2005 at Liverpool Local Court of the following offences:

(i) 5 counts under s7A of the HBA;
(ii) 3 counts under s8 of the HBA;
(iii) 3 counts under s34(2) of the HBA
(iv) 1 count under s92 of the HBA;
(v) 1 count under s4 of the HBA.

Facts:

8 The injunctive orders granted by Justice James on 1 February 2006, inter alia restrained the defendant from undertaking or performing any residential building work including painting and those with a contract value under $1,000 (defined in the Regulations to the HBA as not being “residential building work” for the purposes of the HBA and not requiring any license). The orders also restrained the defendant from receiving any payment in respect of residential building work except as an employee of a licensed contractor.

9 The defendant was personally served with copies of the orders and a warning letter on 14 February 2006 (unsealed copy) and on 16 February 2006 with sealed copy.

10 The Commissioner alleges that the defendant is guilty of contempt in that the defendant has breached the orders in several instances as follows:

Charges 1-6

11 The defendant placed an advertisement in The St George Sutherland Leader newspaper published on 9 February 2006. The advertisement was in the name of “Ben Harris” with mobile phone number “0418 408 921” and offered painting services. On 16 February 2006, in response to the advertisement, a person residing in Cronulla, telephoned 0418 408 921 and left a message. Later on the same day, that person received a telephone call from the defendant who pretended to be “Ben Harris”. As a result of the conversation, the defendant attended the premises on the same day and provided a quote for $1,000 in the name of “Ben Harris”, to paint the ceiling of the premises.

12 On 18 February 2006, the customer telephoned 0418 408 921, spoke with the defendant who provided a further quote to paint the walls of the premises. The defendant also falsely stated that he held a painter’s licence and agreed to commence the painting on 20 February 2006. On 20 February 2006, the defendant again attended the premises, requested a deposit in he amount of $690 for the work, and provided a “tax/invoice statement” and an updated quote for $1,000 in the name of “Ben Harris”. Later on the same day, the customer provided the defendant with $690 cash. She has not seen or heard from the defendant since.

Charges 7-11

13 The defendant placed an advertisement in The St George Sutherland Leader published sometime prior to 21 February 2006. The advertisement was in the name of “Darren Moir” with mobile phone number “0416 415 982” and offered plastering services. On or around 21 February 2006, in response to the advertisement, a person in Peakhurst telephoned 0416 415 982 and spoke with the defendant who pretended to be “Darren Moir”. As a result of the conversation, the defendant attended the premises on 21 February 2006, provided a quote to the customer for $700, and received $400 cash deposit from her to do some plastering work in a bedroom.

14 On 22 February 2006, the defendant telephoned the customer and changed the quote by an additional $300. As a result, the customer requested her deposit of $400 be returned by the defendant. Later on the same day, the defendant attended the premises and stated that he would perform more work including removal of asbestos walls, putting up plaster, painting, and putting in a new wardrobe. The defendant provided an updated quote for $1106 numbered “283372” in the name of “D Moir” incorrectly dated 25 February 2006. The defendant then requested a larger deposit from. However, the customer did not have the cash available and suggested to the defendant that the work should commence on 2 March 2006. The customer has not seen or heard from the defendant since.

Charges 12-16

15 The defendant placed an advertisement in The Hills News published sometime prior to 22 February 2006. The advertisement was in the name of “Darren Moir” with mobile phone number “0416 415 982” and offered plastering services. On or around 22 February 2006, in response to the advertisement, a person in Oakville telephoned 0416 415 982 and spoke with the defendant who pretended to be “Darren Moir”. As a result of the conversation, the defendant attended the premises on 22 February 2006, provided a quote to the customer for $1650 numbered “283377” in the name of “Darren Moir” and requested a deposit of $650 to do some plastering and painting work in two rooms.

16 On 23 February 2006, the defendant telephoned the customer and requested the deposit of $650. Later that day, on the defendant’s suggestion, the customer met the defendant, gave the defendant $600 in respect of the work, and the defendant provided her with a “tax invoice/statement” numbered “AA 1666289” in the name of “Darren Moir” dated 23 February 2006. The defendant at this time also stated that the plaster would be delivered on 27 March 2006. The customer has not seen or heard from the defendant since.

Charges 17-23

17 The defendant placed an advertisement in The Campbelltown MacArthur Advertiser published on or around 25 February 2006. The advertisement was in the name of “Darren Moir” with mobile phone number “0416 415 982” and offered plastering services without the words “COMMERCIAL WORK ONLY” featuring in the advertisement. On 25 February 2006, in response to the advertisement, a person in Leumeah telephoned 0416 415 982 and spoke with the defendant who pretended to be “Darren Moir”. As a result of the conversation, the defendant attended the premises later on the same day, provided a quote to the customer for $400 numbered “283383” in the name of “Darren Moir” dated 25 February 2006 and received $150 cash deposit from him to do some plastering work on an internal wall of the premises. The defendant at this time also stated that he would commence work on 1 March 2006. The customer has not seen or heard from the defendant since.

Charges 24-31

18 The defendant placed an advertisement in The Hills News published on or around 21 February 2006. The advertisement was in the name of “D Moir” with mobile phone number “0416 415 982” and offered plastering services, without the words “COMMERCIAL WORK ONLY” featuring in the advertisement. On or around 21 February 2006, in response to the advertisement, a person in West Pennant Hills NSW telephoned 0416 415 982 and spoke with the defendant who pretended to be “Darren Moir”. As a result of the conversation, the defendant attended the premises on 27 February 2006 to provide a quote for plastering work at the premises and requested $170 “to buy the gyprock” in respect of the work. On the same day, the defendant received $170 from the customer and provided a “tax invoice/statement” to Mrs Hendy for $170 numbered “AA 1666294” in the name of “Darren Moir” in respect of the work. On or around this time, the defendant had also offered to “replace the bath and sink”.

19 On 28 February 2006, the defendant again attended the premises to do plastering work. On 1 March 2006, the defendant returned to the premises to do plastering work and requested a further $1250 from the customer. On the same day, the defendant received $1250 cash from the customer and provided a receipt for $1250 to her, numbered “C6593160” in the name of “Darren Moir” and incorrectly dated 28 February 2006. The only work performed by the defendant at the premises was some removal of asbestos from the walls. The customer has not seen or heard from the defendant since.

Charges 32-36

20 The defendant placed an advertisement in The Parramatta Advertiser published on or around 1 March 2006. The advertisement was headed “clean efficient painter” with phone number “9774 5719” and offered painting services under $1,000, without the words “COMMERCIAL WORK ONLY” featuring in the advertisement. On 2 March 2006, in response to the advertisement, Ms Christina McAuley of the Office of Fair Trading telephoned 9774 5719 and spoke with the defendant who did not introduce himself. As a result of the conversation, on the same day, the defendant attended residential premises at in Ermington to provide a quote for painting work at the premises, telephoned Ms McAuley, pretended to be “Terry the painter” and provided a quote for $1200 to paint the exterior fence of the premises. The defendant then arranged to return on Saturday (4 March 2006) to do the painting, collected $100 from the letterbox on the premises as directed by Ms McAuley and left in the letterbox for Ms McAuley a receipt for $100 number “C6593161” in the name of “Terry Rush” dated 4 March 2006, as well as a “tax invoice/statement” for a total of $1200 numbered “AA 1666295” in the name of “Terry Rush” dated 2 March 2006, in respect of the painting work.

21 On 4 March 2006, the defendant left telephone messages and SMS messages for Ms McAuley on her mobile telephone number 0434 078 688 from his mobile telephone number 0406 245 818 pretending to be “Terry the painter”. The defendant stated that he was unable to commence the painting on 4 March 2006 and inquired as to whether he could commence the painting on Monday (6 March 2006). On 5 March 2006, Ms McAuley sent a reply SMS message to the defendant’s mobile telephone stating that she “had to go up the coast to deal with an emergency” and that she would “get back to (him) during the week”. On 6 March 2006, the defendant sent a further SMS message to Ms McAuley from his mobile telephone an inquired whether Ms McAuley still wanted the painting work done and offered to “refund the money”. Ms McAuley did not reply and has not seen or heard from the defendant since.

Antecedents

22 On 25 May 2006, the defendant was convicted of various fraud-related charges at Sutherland Local Court and was sentenced to 18 months imprisonment commencing 9 March 2006 and expiring 8 September 2007, with a non-parole period of 12 months (earliest possible release date 9 March 2007).

23 The offender has pleaded guilty before me of 36 charges of contempt arising out of those activities. In all, six persons were involved and the total sum of money extracted from them was $3,340. These activities were a flagrant breach of orders of this Court and represented a contumacious disregard of those orders. The seriousness of the offender’s conduct considerably exceeds the relatively small sums involved.

24 It is trite to say that orders of courts must be obeyed by the persons to whom they are directed. Contumaciously refusing to do so, as was done by this offender, must be punished not only with regard to the extent of personal culpability but also because of the necessity to ensure that others who might be like-minded will be deterred. Of course the ultimate sentence cannot exceed that which the objective seriousness of the offender’s criminality justifies but I have no hesitation in saying that the objective seriousness of the offender’s criminality in this case was substantial.

25 The sentencing picture is complicated somewhat in the circumstances of this case because the offender has been charged, pleaded guilty and sentenced in respect of the criminal aspects of his conduct relating to charges 1 to 6, 7 to 11, 12 to 16, and 17 to 23. In respect of that conduct, an overall sentence was imposed on the offender of 18 months' imprisonment with a non-parole period of 12 months commencing on 9 March 2006. In imposing that sentence the learned Magistrate took into account as an adverse aggravating feature the fact that the offender’s actions were in breach of orders of this Court.

26 The charges for which he was sentenced are as follows –

SC Charge no - Money involved	Sentence	Offence Date(s)	Offence
1-6 $500	18mth, npp 12 mths from 9/3/06	16/2/06-22/2/06	Fraudulent Conversion by bailee s125 Crimes Act 1900
7-11 $400	Ditto	21/02/06	Dishonestly obtain benefit by deception s178BA Crimes Act 1900
12-16 $600	Ditto	23/02/06	Ditto
17-23 $150	Ditto	25/2/06	Ditto

27 Both in form and in substance these are different from the charges which he is now facing. However, there are common factual elements. It is also necessary to allow for the fact that the sentences he is presently serving involve punishment for the breaches of the orders of this Court and justice requires that the offender not be punished twice for those breaches. For entirely explicable reasons the learned Magistrate did not ascribe any particular proportion of the sentences he imposed to this aspect but it would have been proper for him to have given considerable significance to it. I have therefore formed the view that it would be both wrong in principle and unjust to impose sentences in respect of the charges dealt with before the learned Magistrate by imposing a further sentence for the disobedience involved in those charges.

28 Consistent with the sentencing principles enunciated in Pearce v The Queen (1998) 194 CLR 610 it seems to me that, in respect of the breaches of the orders relating to the charges which I have enumerated, the appropriate order is that the offender is sentenced to the rising of the Court and I make that order in respect of those charges.

29 In relation to the other charges, however, which are not the subject of punishment imposed as a result of prosecuting offences under the Crimes Act 1900, it seems to me that sentences of imprisonment must be imposed. In this respect, it is necessary to consider the subjective features of the case.

30 The offender is twenty-seven years of age. His background is unremarkable. He comes from a respectable family who have done their best to support him during the course of the proceedings and stand ready to support him into the future. The offender had developed an addiction to gambling which has, to adopt the language of Mr Stratton SC on his behalf, cost him his first marriage, his business, and all his savings. It has also destroyed his reputation, has led to his being branded a thief and has caused considerable shame and embarrassment to his family. He is presently in a de facto relationship and his wife is about to give birth to a child.

31 He gave evidence before me. I have no doubt that he is truly sorry for what he has done but, more than that, he has realised how catastrophic has been his conduct and how shameful and wrong it was. This acknowledgement of his responsibility and his expressed determination to obtain help from Gamblers’ Anonymous bodes well for his rehabilitation.

32 Addiction for whatever thing is insidious and by definition powerful. It is not possible to predict with certainty whether the offender will manage to overcome his addiction, but he is on the way to doing so. He has understood the consequences for his life and the lives of those around him of not doing so and I think that he should be given a chance to prove himself.

33 He has also pleaded guilty. The task of mounting a prosecution for contempt in this Court is not a simple one and the numbers of charges if required to be proved would result in a lengthy trial. Furthermore, the offender indicated at the earliest possible opportunity that he was prepared to plead guilty, so that the Crown has not had to undertake the onerous task of preparing a case for trial. This represents a substantial utilitarian advantage to the administration of justice and, in my view, warrants a discount in the order of 25 percent.

34 Although the breaches of the orders number twelve, as charged, I do not regard it as useful or necessary to impose sentences of different lengths in relation to each of those charges.

35 In the light of the accumulation I propose, but also because of the assistance which I think that the offender needs upon release, special circumstances exist and warrant the variation of the statutory calculus provided in s44 of the Crimes (Sentencing Procedure) Act 1999.

36 In relation to each of the charges I impose a non-parole period of nine months commencing on 9 September 2006 and concluding on 8 June 2007. The balance of the term is to commence on 9 June 2007 and expire on 8 March 2008.

37 The offender is to be released on parole on 8 June 2007. I order that upon his release on parole he be placed under the supervision of the Probation and Parole Service.

**********

02/05/2007 - Date of judgment added - Paragraph(s) Coversheet