Consumer & Business Service v Jin - [2025] SASC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
CONSUMER & BUSINESS SERVICE v JIN
[2025] SASC 38
Judgment of the Honourable Justice Gray (ex tempore)
19 March 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
The respondent pleaded guilty in the Magistrates Court to one count of interfering with an odometer and one count of dishonestly dealing with documents. The Magistrate, without recording convictions, placed the respondent on a supervised bond in the sum of $1,000 to be of good behaviour for a period of two years, but to return to Court for both conviction and sentence if he failed to comply with the conditions of the bond and ordered the appellant pay compensation of $1,364.50 to the purchaser of the vehicle, court, prosecution fees and victims of crime levy.
The appellant appeals against the penalty imposed on three grounds:
1.The Magistrate erred in finding there was good reason to discharge the respondent on a bond to be of good behaviour under s 97(1) of the Sentencing Act 2017 (SA) (the Sentencing Act) without recording a conviction.
2.The Magistrate erred in finding that it was open to decline to record convictions under s 97(1) of the Sentencing Act in circumstances where he had concluded that such a similar course was not open under s 24 of the Sentencing Act because he was not of the opinion that the respondent was unlikely to commit such an offence again.
3.The Magistrate erred in imposing a penalty that was manifestly inadequate having regard to the purpose of sentencing for regulatory offences.
Held, dismissing the appeal:
1.The leniency of not recording a conviction will rarely have application in relation to a regulatory offence. In this case, the Magistrate included in his consideration matters which could amount to “good reason” within the meaning of s 97 of the Sentencing Act (at [36]).
2.It was open to the Magistrate to exercise the sentencing discretion pursuant to s 97 of the Sentencing Act 2017 (SA) without first excluding the use of other available sentencing options (at [40]).
3.The sentence imposed was lenient but not disproportionate to the seriousness of the crime so as to shock the public conscience (at [44]).

Criminal Law Consolidation Act 1935 (SA) s 140; Fair Trading Act 1987 (SA) s 78C; Second-hand Vehicle Dealers Act 1995 (SA) s 34; Sentencing Act 2017 (SA) s 24, s 97, referred to.
Everett v The Queen (1994) 181 CLR 295; Gallagher v Police (SA) [2025] SASC 16; Griffin v Police [2005] SASC 337; House v The King (1936) 55 CLR 499; Police v Cadd (1997) 69 SASR 150; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; R v Osenkowski (1982) 30 SASR 212; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Wainohu v New South Wales (2011) 243 CLR 181, applied.
Chehade v Commissioner for…

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: [2025] SASC 38
Decision Date: 19 March 2025

CaseChat Overview and Summary

The appellant, Consumer & Business Service, sought to appeal against the sentencing decision made by the respondent, Jin, in the Magistrates Court of South Australia. The appeal was heard by the Supreme Court of South Australia. The central issue in this appeal was whether the sentence imposed by the Magistrate was manifestly excessive or inappropriate, warranting intervention by the Supreme Court.

The Supreme Court considered whether the sentence imposed by the Magistrate was manifestly excessive or inappropriate, and whether the court should intervene. The court held that it should not intervene simply because it might have reached a different conclusion than the sentencing court. The sentence imposed was deemed to be lenient, and not so disproportionate to the seriousness of the crime as to shock the public conscience. The appeal was dismissed on the basis that the sentence was not manifestly excessive or inappropriate.

In conclusion, the Supreme Court dismissed the appeal and upheld the sentence imposed by the Magistrate. The court found that the sentence was not manifestly excessive or inappropriate, and that there was no basis for the Supreme Court to intervene in the sentencing decision.

Orders

Orders of the court

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Background

Background to the litigation

In order to understand the grounds of appeal, it is necessary to refer in some detail to the sentencing process adopted by the Magistrate. The Magistrate set out the facts and circumstances from the prosecution outline in detail. The learned Magistrate then recognised that the maximum penalty for an offence against s 34 of the SHVD Act is a fine of $10,000 and the maximum penalty for an offence against s 140 of the CLCA is imprisonment for 10 years.Background The learned Magistrate’s remarks record that investigators for the Commissioner for Consumer Affairs (the Commissioner) commenced an investigation in relation to allegations of odometer tampering after receiving a complaint from SA Police. During the course of their investigation, it was identified that a 2017 VF Holden Commodore with a New South Wales registration number of DPN13A (the Commodore) was a vehicle of interest. The investigations revealed that on 18 November 2022, the Commodore had an odometer reading of 221,589 kilometres as recorded in a New South Wales authorised inspection e-safety check report. On 3 February 2023, the Commodore was sold for $15,000 in Wagga Wagga, New South Wales with an odometer reading of approximately 221,000 kilometres. The Commodore was transported from Wagga Wagga to South Australia by the respondent. The Department of Infrastructure and Transport (DIT) documents accessed by investigators indicated that the Commodore was presented to DIT by the respondent for inspection in South Australia on 10 February 2023, with an odometer reading of 67,559 kilometres. That same day on 10 February 2023, the Commodore was advertised for sale on Facebook Marketplace by a seller, ‘Jux Jin’, for $27,500. The description of the Commodore indicated that the vehicle came with a service logbook. The respondent when interviewed by investigators admitted that he posted the advertisement on Facebook. Dylan Hards was looking to purchase a vehicle for himself in February 2023 and reports seeing the advertisement for the Commodore on Facebook Marketplace. The following day on 11 February 2023, Mr Hards made contact with the respondent. They arranged to meet at a location in Lightsview. Mr Hards inspected the Commodore and took it for a test drive. The respondent showed Mr Hards the Identity Inspection paperwork and at the conclusion of this meeting, Mr Hards agreed to purchase the Commodore from the respondent. Two days later on 13 February 2023, Mr Hards arranged for a bank cheque in the amount of $26,500 to be made out to the respondent for the purchase of the Commodore and the transactions were concluded on 14 February 2023, when the respondent sold the Commodore to Mr Hards for $26,500. The Commodore registration was transferred to Mr Hards and he was provided with a South Australia registration number S346CUH. Mr Hards also paid a transfer fee of $673.56. Later that day, Mr Hards took the Commodore to Peter Page Hyundai, which had previously been a Holden dealership, to be serviced. A staff member conducted checks on the Commodore in the General Motors and Holden database using the Commodore’s VIN number and was able to locate the Commodore’s service history. Each of the odometer readings recorded in the General Motors service history are set out in the Magistrate’s reasons. They indicate a steady increase in the kilometres recorded on the odometer. The first reading is a record of 19 October 2017 of 16,346 kilometres. There are then recordings at regular intervals of at least twice a year for each year until 18 November 2022, when a reading of 221,589 kilometres is recorded. Following the provision of the General Motors history to Mr Hards, Mr Hards requested to return the Commodore to the respondent and cancelled the bank cheque. The respondent agreed. The respondent met Mr Hards at Service SA where Mr Hards paid $691 to have the Commodore transferred back into the respondent’s name.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

The learned Magistrate determined to exercise leniency in this case. This Court should not intervene simply because it may have come to a different conclusion than the sentencing court.[39] The sentence imposed was lenient, it was not so disproportionate to the seriousness of the crime as to shock the public conscience.[40] Ground 3 of the appeal is dismissed. [39] R v Osenkowski (1982) 30 SASR 212, 213 (King CJ); Everett v The Queen (1994) 181 CLR 295, 299-300, 305 (Brennan, Deane, Dawson, Gaudron JJ), 306-7 (McHugh J); Dinsdale v The Queen (2000) 202 CLR 321, 324-5 (Gleeson CJ and Hayne J), 329 (Gaudron and Gummow JJ), 339-40 (Kirby J); House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt, and McTiernan JJ). The reasons given for dismissing Ground 1 are also relevant to this ground.[40] See also, R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ); R v Yaroslavceff [2022] SASCA 123; R v Dyett [2023] SASCA 41.Conclusion The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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