Director of Public Prosecutions v Aziz
[2019] VCC 411
•5 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-18-2785
IN THE MATTER OF AN APPEAL BY THE
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| GELZAR ALI AZIZ | Respondent |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19 and 20 March and 5 April 2019 | |
DATE OF SENTENCE: | 5 April 2019 | |
CASE MAY BE CITED AS: | DPP v Aziz | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 411 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Director’s appeal – unlicensed motor car trading – one of the initial prosecutions of its kind – illegal purchase of 6 motor cars from unlicensed trader – convicted and fined $600 – illegal sale of 69 motor cars – offences subject to fine only – objective seriousness of offence – convicted and fined $30,211.50 – costs orders made
Legislation Cited: Motor Car Traders Act1986; Sentencing Act1991
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms S Pillai | The Solicitor for the Office of Public Prosecutions |
| For the Respondent | Mr M Brennan | Emma Turnbull Lawyers Pty Ltd |
HER HONOUR:
1 This is an appeal by the Director of Public Prosecutions on behalf of the Director of Consumer Affairs Victoria against orders of the Magistrates’ Court at Melbourne made on 19 October 2018. On that date, you had pleaded guilty to two charges of breaching s7 of the Motor Car Traders Act 1986 (“the Act”).
2 Charge 1 involved you purchasing six motor cars between 13 April 2016 and 22 February 2017 in circumstances from where the person whom you purchased the cars was not the holder of a motor car trader’s licence and you, as the purchaser, were not the holder of a motor car trader’s licence. Without conviction, you were fined $1,850.36.
3 Charge 2 involved you having purchased and on-sold 69 motor cars between 20 March 2016 and 14 March 2017. You were not the holder of a motor car trader’s licence and nor were the persons to whom you on-sold the vehicles. Without conviction, you were fined $21,362.52.
4 All purchases of vehicles were made in your name at a vehicle auction house conducted by Manheim Pty Ltd (“Manheim”). On each occasion a buyer registration card was completed with your full name, address, mobile telephone number, date of birth and driver’s licence. The buyer registration card was signed by you in relation to the purchase of each of the vehicles. A tax invoice was issued by Manheim in your name. Further, for each of the 69 motor cars which were sold, you completed and signed a VicRoads application for transfer of registration form.
5 The maximum penalty specified in s7(1) of the Act is 100 penalty units, for each motor car bought, sold or exchanged or offered to be bought, sold or exchanged in contravention of that sub-section. The value of one penalty unit at the time of your offending was slightly in excess of $150. Hence, the maximum penalty for each car illegally traded was slightly in excess of $15,000. Further, s7(2) states that:
“If a person is convicted of an offence against subsection (1), the court may, in addition to or substitution for any penalty it may impose, order the person to pay a fine equal to 15 per centum of the sale price of each motor car with respect to which the offence was committed.”
6 This is one of the first investigations by the Director of Consumer Affairs Victoria into illegal motor car trading. The investigation of illegal motor car trading began in response to complaints from licensed motor car traders who were aggrieved by unfair competition to their businesses from unlicensed motor car traders.
7 A person who purchases a motor vehicle from an unlicensed motor car trader, like yourself, is not given the same protection they would have, had they had purchased from a licensed motor car trader. The legislation and regulations include an entitlement to make a claim against the Motor Car Trader’s Guarantee Fund where a licensed motor car trader is in breach of regulatory or statutory requirements, specific terms and conditions in agreements for sale, as well there being certain prohibited terms and conditions, the entitlement to a cooling off period and the right to apply for an order to rescind an agreement.
8 A licensed motor car trader is obliged to comply with requirements in order to become registered, pay a licence fee, adhere to advertising obligations, keep accurate business records and ensure that its servants and agents are of good character by complying with various requirements in s35A of the Act and Regulation 18 of the Motor Car Traders Regulations 2008.
9 Pursuant to s7A(1) of the Motor Car Traders Act, a person who buys or sells four or more cars in any period of 12 months (whether as a principal or as an agent), is deemed to be a motor car trader carrying on a business of trading in motor cars. The Act provides a number of circumstances where an exemption applies, but none of those circumstances operate to exempt you.
10 On Charge 1, the 6 cars purchased were on 13 April, 1 June and 2 November 2016, and on 25 January, 1 February and 15 February 2017. They ranged in price from $650 to $1,100.
11 On Charge 2, the evidence is that between 20 March 2016 and 14 March 2017, 69 vehicles were purchased for a total price of $49,870 (these included the 6 vehicles the subject of Charge 1). In addition, a total of $23,870 by way of fees to Manheim was paid. Thus, your total expenditure over the 12 months was $73,740. Evidence from the forms for transfer of registration of the 69 vehicles shows that the total sale price received for all vehicles was $109,410. However, the appellant does not accept that the sale figures shown on the transfer documents necessarily reflect the actual amount for which each car was sold. This is because 21 of the 69 vehicles were sold at a loss. The appellant submits that it is unlikely that you would have gone to all the time, trouble and effort to identify a motor vehicle to be purchased, attend the auction and bid for it, and find a buyer for it in order to make such little return on it or in fact, no return or loss in those 21 cases. If the transfer documents were accurate, they would show a profit of only $35,670 for the entire 12 months of trading in 69 vehicles.
12 Mr Brennan conducted a plea in mitigation on your behalf. He told the Court that you were born in Iraq. Your date of birth is apparently 16 March 1969 and your are presently aged 50 years. He stated that in 2006 you and your family fled the war in Iraq and went to Syria. Apparently, your husband is blind in one eye and has only partial sight in the other eye. You have three children, but became separated from your oldest daughter. She was already married and, along with her husband and three children, ended up seeking refugee status in Italy. Your husband and your remaining children ultimately found their way to Australia as refugees in 2007.
13 Mr Brennan stated that, since 2009, you have been in receipt of a disability pension for “tachycardia and back pain”. Tendered as Exhibit 1 was a “health summary sheet” printed on 14 May 2018 from Dr Wasfy Gerges of 541 St Georges Road, Thornbury, Victoria. It provided minimal information about the severity of any condition which might justify a disability pension. The only current active problems noted were an iron deficiency – anaemia in 2014 and supraventricular tachycardia in 2014. There are a number of things listed under past medical history which included in 2016 a reference to L4-5 and L5‑6 lumbar disc bulge and canal stenosis and a note of bilateral leg and low back pain. However, the only current medications that were listed were inhalers and Vitamin D capsules. There was no note of any current treatment regime for either tachycardia or back pain. On the adjourned date of the appeal hearing, today, a slightly more fulsome record of your medical history was tendered as Exhibit 4. This was a report from Dr Gerges dated 21 March 2019. It stated, amongst other things, that you have frequent exacerbations of asthma associated with chest infections. Also, your tachycardia with recurrent palpitations and a fainting feeling had required attendance at St Vincent’s Hospital emergency department, although no date was noted. The lower back pain and leg pain were mentioned, although only Panadol as needed is prescribed. You are also said to have chronic left shoulder pain and bursitis, beta thalassemia with chronic fatigue, migraine and hepatitis c.
14 Mr Brennan stated that you live at the Fitzroy Housing Commission flats and one of your sons, Hussein, lives with you as your full-time carer and receives a carer’s pension. You receive a disability pension, as does your husband. The three of you receive Centrelink benefits of $800 per fortnight each. Your counsel submitted that, after the rent was paid, there was not very much money for you to live on.
15 There was very little explanation of how you came to be involved in this offending. I inquired as to your level of education and was told that you had undertaken primary school education in Iraq. I asked how a person like you, who cannot speak English and requires an interpreter in Court, managed to become interested and able to conduct a business of motor car trading. You instructed Mr Brennan that your interest in this area came from other members of your community who told you that buying and selling vehicles was a way to earn money, it was not difficult, and just involved finding out what a car was worth and how much to sell it for. I asked how you managed to bid for and sell the cars given your lack of English skills. It became apparent that your son, Abdul, who works in a carwash and who also lives with you at 8 Holden Court, North Fitzroy, had the knowledge of vehicles. Indeed, he would take you out to Manheim and fill out all the documentation on your behalf and “act as [your] interpreter while he made bids on your behalf.” Abdul is 24 years old.
16 Given your modest financial circumstances outlined to the Court, I inquired as to how you managed to fund the purchase of the 69 cars over the 12 month period which, together with fees, amounted to $73,740 by way of expenditures. Mr Brennan told the Court that you had some “modest savings” and that your daughter, Hager Ghafour, aged 19 years, had helped you with the purchase price. The matter was adjourned part-heard to 20 March 2019. On that day, Mr Brennan indicated that in March 2016, your daughter had been at school commencing Year 11, so she had limited capacity to help you with the purchase price of the cars, although you still maintained that she did so “from time to time”. You continued to instruct Mr Brennan that you had saved small amounts of cash over the years and, although you are unable to say how much you had saved, this was the bulk of the money used to commence the business. However, you then instructed Mr Brennan that you had been assisted by your son, Abdul, who made “cash gifts” to you, but were unable to say how much these were or when they occurred. I indicated that I would not accept evidence from the Bar table and stood the matter down. When the matter resumed hearing, Mr Brennan stated, “I have formed the view that the Court cannot be usefully informed about the circumstances of this matter by calling my client.”
17 The plea continued with Mr Brennan conceding that a fine was warranted but submitting that your profit was modest. You instructed him that some cars were sold at a loss because it was difficult to sell them because of their poor condition. I asked where the proceeds from the sales of cars had gone and Mr Brennan stated that both the purchases and sales were in cash and the cash was not banked. You then instructed Mr Brennan that the money had mostly been transferred to help relatives overseas. Mr Brennan stated that such transfers did not cover all of the money from the sales and you were unable to assist the Court further as you could not remember amounts.
18 Mr Brennan urged the Court to accept that the sum total of your profit was $35,670 based on the amounts which appeared on the transfer of registration forms. He urged that the court take into account your early pleas of guilty as remorseful pleas, along with your lack of prior or subsequent offending. He tendered 3 character references on your behalf.
19 The first reference is from a neighbour of some 11 years, Ms Lorraine Williams. She describes herself as something of a surrogate grandmother to your youngest daughter. She states that she has never known you to be dishonest or untrustworthy but you have always struggled financially. She states that you are “constantly offering to do odd jobs – cleaning, weeding etc for neighbours to earn money to send to [your] grandchildren. Clothes especially during Italy’s winter.” She stated you are isolated socially from the Kurdish and Arabic community and feel remorse and shame for what you have done.
20 The second reference is from Mrs Lucia Singh, a neighbour of some 10 years. She describes you as being kind and generous and states that you have helped her when she has been ill, by shopping and preparing food for her. She describes you as honest and reliable and trustworthy and well liked and respected.
21 The third reference is from your youngest daughter, Hager Khalil Ghafour, aged 19 years. She stated that the family had always had a strong bond, but during the Iraq War in 2006 her older sister, Zaynab, and her husband and children were sent to Italy, when the rest of the family came to Australia. The family has not been together since then, and your health began to deteriorate rapidly. She claims that, during the time you bought and sold cars, you only did this to provide funds for your daughter, grandchildren and disabled son-in-law, who were refugees in Italy, whether by way of sending money or buying second hand clothing. However, Zaynab and her family have now found a home and stability in Italy, which has relieved your stress and distress.
22 You were given the opportunity to provide evidence to the court that you had transferred funds to Italy to help your daughter and her family, and the matter was adjourned to, today, 5 April 2019. On the adjourned date, tendered as “Exhibit 3” was a letter dated 29 March 2019 addressed to yourself from The Western Union Company. The letter had an appendix which set out transactions of monetary transfers to Zaynab Khalil Khafour in Italy. Between 6 October 2016 and 26 March 2017, there were 22 transfers from yourself of amounts ranging from $100 to $600. The sum total of the transfers was $5,350, which incurred charges totalling $335. These sums, amounting to $5,685, account for approximately one-sixth of your alleged profit of $35,670. The $5,685 was transferred over 6 of the 12 months during which you engaged illegally in this business as a motor car trader.
23 I accept that you have apparently been assisting your daughter and her family in Italy, but not that this was the sole purpose for your offending. Nor am I satisfied on the balance of probabilities that your total profit was a modest one consisting of only $35,670. I consider it highly unlikely that almost one third of the vehicles sold by you were sold at a loss. I consider that you have been less than frank with this court, however, the prosecution are unable to produce evidence of the sale price of the vehicles apart from what was recorded on the transfer of registration forms signed by you. The total sales for all cars, $109,410. This the figure upon which any alternative additional pecuniary penalty pursuant to s7(2) of the Act must be calculated if the court were to be so minded.
24 Although I suspect that your son, Abdul, may be behind this offending, you nevertheless facilitated it by repeatedly signing documents necessary for the purchase and sale of the cars in question and you have pleaded guilty to the offences charged. I can understand that it would be very distressing for you to have been separated from your oldest daughter during the traumatic process of fleeing from Iraq and trying to find a place where you could settle as a refugee and that you would be worried about how your daughter and her family were faring. You are fifty years of age, which is not elderly and have a number of medical concerns to which I have referred. One of your referees refers to you regularly offering to do cleaning, weeding and the like for neighbours in order to earn money. Another referee refers to you undertaking shopping and cooking for her at times. In these circumstances, I do not understand why your son, Hussein, would be required to be your full-time carer, necessitating him receiving a carer’s pension.
25 Many refugees who come to Australia have needy relatives overseas and are not well off financially themselves. Yet they do not resort to illegal activity to improve their lot. It would be a chaotic situation if they did and the court must denounce this illegal trade. Centrelink has been funding benefits for three people in your household whilst you have been engaged in this motor car trading business. There is no satisfactory explanation as to how you came by the sum of $73,740 to purchase vehicles over the 12 month period in question. The “modest profit” of $35,670 which you claim you made has not been declared to Centrelink. This is a side issue and it is no part of my role to punish you for that. However, I consider that it would be appropriate for the Director of Public Prosecutions to draw these circumstances to the attention of Centrelink.
26 Parliament has provided that the only penalty available for this offending is a fine. The purpose of the Motor Car Traders Act as set out in s1 is:
“ … to provide for the regulation of motor car traders and to ensure that licensing is carried out efficiently and equitably and that the rights of those who deal with motor car traders are adequately protected.”
27 I have previously referred to the penalty provisions in s7(1) and s7(2). It is clear that Parliament intended the financial penalties for this offending to act as a deterrent to people who might be minded to engage in this illicit trade in motor vehicles to make money. Section 7(2) makes it plain that the number of cars involved and their sale prices is an indicator of the seriousness of offending which a sentencing court is entitled to take into account in determining an appropriate additional fine if a person is convicted of a s7(1) offence. Apart from general deterrence, there needs to be some emphasis upon specific deterrence given that your conduct continued regularly for approximately 12 months, although in this context, I note there is no allegations of subsequent offending. The primary sentencing objectives must be denunciation of this conduct and emphasis upon the principle of general deterrence. What this means is that a message must be sent to others who are minded to engage in illegal trading as you have done that it will not be worth their while because they will be financially punished.
28 In determining the quantum of the fine, a court must consider the maximum penalty imposed by the legislature, the gravity of the circumstances of offending and the circumstances of the offender to pay, and generally speaking, impose a fine which is in proportion to the gravity of the offence.
29 In this case, it has been put on your behalf by Mr Brennan that you are a disability pensioner with no other income and your bank account, at the present time, has a credit balance of only a few dollars.
30 Although it is a well recognised sentencing principle that a financial obligation imposed by a court should be commensurate with the ability by the offender to pay, it is incumbent upon an offender to put before the court her financial position. It is claimed that now she is impecunious and has no real ability to meet a fine from her disability support pension. However, you have never explained in credible terms how you managed to come by the many thousands of dollars to spend on purchasing cars over the relevant 12 month period or where the $109,000 which you allege you obtained from sales went, albeit that she only claims to have made a profit of some $35,000, about one-sixth of which was apparently sent to her daughter in Italy. In this case, there is a tension between the conduct comprising the offending and the offender’s alleged impecunious status as a disability pensioner. I here interpolate that, although there are 69 cars which are the subject of your offending on Charge 2, the evidence is that you actually purchased 95 cars from various sellers via Manheim during the relevant 12 months. Thus, the amount of money available to you over the period of offending was considerably greater than $73,740.
31 I do take into that you have been of prior good character and have pleaded guilty at the earliest possible opportunity. Given the number of transactions involved in your offending, particularly in relation to Charge 2, a contested hearing would have involved the prosecution having to call a considerable amount of evidence. I have reservations about whether your pleas of guilty are remorseful because I consider that you have been less than forthcoming about the circumstances surrounding your offending. However, your plea is of significant utilitarian value. Thus, you are entitled to a discount on the sentence which otherwise would have been imposed.
32 Pursuant to s5(2) of the Sentencing Act, there are number of matters which I am obliged to take into account. I note that there is no evidence that any of those who purchased vehicles from you have suffered through not having the protections available to them which they would have had were you a licensed motor car trader. However, your conduct does place licensed motor car traders at a competitive disadvantage. They do the right thing and become registered and pay the appropriate fees for a licence and keep records and the like as they are required by law to do. When someone like yourself does not engage in those important steps and simply trades illegally, not only are they are disadvantaged but the law is bought into disrepute if it is not enforced.
33 Your counsel submitted that, although a sentence by way of a fine was appropriate, it should be a “without conviction” sentence. Section 8 of the Sentencing Act lists matters to which a court must have regard in exercising its discretion whether or not to record a conviction. They include your character and past history, which has been law abiding, and, according to references, you are a kind and good person. Your counsel urged that the recording of a conviction may impact adversely upon you should you wish to travel to Italy to visit your daughter. This was an assertion from the Bar Table not supported by any evidence.
34 The maximum penalty prescribed for this offending is a significant factor. Although there are only two charges, each of them comprises multiple transactions, particularly Charge 2. It cannot be said that you engaged in an isolated act of offending. Rather, your conduct involves a persistent and regular flouting of the law which continued over a 12 month period. Notwithstanding your own personal prior history of apparent good character and lack of offending, the nature of this offending comprising repeated illegal transactions over a significant period of time, makes it inappropriate to exercise my discretion to record a non-conviction sentence.
35 I note that Charge 1, which involves purchase of motor cars, is a less serious offence than Charge 2, which involves the sale of motor cars. Charge 1 also involves a vastly less number of transactions than Charge 2. The 6 vehicles which form the subject of this charge are also included in the sale transactions comprising Charge 2. The prosecutor, Ms Pillai, acknowledged that the process of ascertaining whether a seller was a registered motor car trader was not necessarily straightforward. Moreover, you made the purchases at a reputable auction house. It is probably a reasonable assumption by a member of the public that an auction house would be selling cars on behalf of licensed motor car traders or private individuals. It is a very different situation from underhand purchases on the black market. The fine which I intend to impose reflects these factors.
36 As far as the fine for Charge 2 is concerned, I have wrestled with the competing sentencing considerations. I have concluded that given the lack of adequate explanation of how you funded this enterprise and where the profits went, I cannot be satisfied that your sole financial resources were your disability pension. Given the clear legislative intent to deter this illegal trading as reflected in the maximum penalty provisions, I consider that if a fine proportionate to your alleged ability to pay it would be so low as to effectively amount to a licence to commit this offence. Nor should it be so high as to be impossible to pay. However, I consider that it should at least deprive you of the alleged profit that you made so as to denounce your conduct and act as a deterrent to you and others who may be minded to engage in this offending.
37 Pursuant to s259(2) of the Criminal Procedure Act, I formally set aside the orders of the Magistrates’ Court made on 19 October 2018, and in their stead impose the following sentences:
38 On Charge 1, you are convicted and fined $600.
39 On Charge 2, pursuant to s7(1) you are convicted and fined $35,070.
40 Thus, the total fines imposed are $35,670, the amount which you claim you made.
41 I order that you pay costs in the sum of $6,662.54. I consider these are warranted as the investigation has involved a considerable amount of time, trouble and analysis.
42 I direct that the fines be collected and managed by Fines Victoria and then paid into Motor Car Traders’ Guarantee Fund, a trust fund managed by Consumer Affairs Victoria.
43 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, I would have imposed a fine of $750 on Charge 1 and a fine of $46,643 on Charge 2.
44 Pursuant to s15 of the Appeal Costs Act, I certify the respondent’s costs on appeal for 1 day, namely 20 March 2019
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