Director of Public Prosecutions v El Haouli
[2017] VCC 125
•15 February 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR -16-01011
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMAD EL HAOULI |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 November 2016 |
DATE OF SENTENCE: | 15 February 2017 |
CASE MAY BE CITED AS: | DPP v El Haouli |
MEDIUM NEUTRAL CITATION: | [2017] VCC 125 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | OPP |
For the Accused | Mr C. Mandy | Armstrong Legal |
Pages 1 - 12
HIS HONOUR:
1Mohammad El Haouli, you have pleaded guilty to Charge 1, obtaining property by deception between 1 May 2012 and 22 May 2015 on Indictment No. G10870345. This charge is a course of conduct charge and has a maximum penalty of ten years' imprisonment.
2You have also pleaded guilty to summary charge 12, unlicensed motor car trader, which was transferred to this court pursuant to s.145 of the Criminal Procedure Act. Between August 2013 and May 2015, you carried on a business of trading motor vehicles without being the holder of a motor car trader's licence. The maximum penalty is for this charge is 100 penalty units for each car bought, sold or exchanged.
CIRCUMSTANCES OF THE OFFENDING
3You were the sole owner and registered director of a company named Batman Tyres and Auto Services Pty Ltd at 122 Gaffney Street in Coburg North. Between 1 May 2012 and 22 May 2015, you were purchasing vehicles from various interstate vendors, usually at auction. You sometimes made the purchases using accounts in the names of other people or your company. These vehicles all have odometer readings between 176,000 kilometres and 395,000 kilometres.
4You would then register the vehicles in Victoria either in your own name or that of your wife, Samantha. You used false purchase receipts when registering the vehicles, which displayed lower prices than that which was paid for at auction. The purpose of this was to reduce your liability for stamp duty. This an uncharged act in the overall scheme of this case.
5The vehicles were then advertised for sale by you through the website carsales.com.au or other places online. By that time, the odometers on the vehicles had been wound back to significantly lower the figures and those lower odometer readings were used to advertise the vehicles for sale. You then sold the vehicles at a much higher price to unsuspecting buyers. A table setting out each of the 11 vehicles sold by you as part of this course of conduct is attached to the Indictment and is marked Schedule A. I attach Schedule A to these reasons for sentence. I will not read through it.
6The total amount of the cash obtained by you through the sales of the 11 vehicles with the wound back odometers was $320,200. That's the basis of Charge 1. Those 11 vehicles were purchased for a total of $166,518 when purchased and with the original odometer readings. Therefore, they were sold by you for $153,682 more than that you purchased them for. Neither you nor your company has ever held a licence to be a licenced motor car trader.
7Between August 2013 and May 2015, which is the charged period relevant to Summary Charge 12, you bought and sold seven of the vehicles referred to in Schedule A which is the charge that I have just read out.
8On 17 November 2015, a search warrant was executed at Batman Tyres and Auto Services Pty Ltd. During the course of the search, VicRoads road worthiness books and other documentations relating to the trading of motor vehicles were located.
9You were arrested and interviewed on 17 November 2015 at the Fawkner police station. During the interview, you said as follows;
(a) you acknowledged buying and selling the vehicles outlined in Schedule A. When asked to explain why you were buying and selling them the way that you did, you said that, "When we were quiet in the shop, I worked on my own vehicles to keep the workshop going.
(b) when asked about the receipts written in your wife's name of the sale of one of the cars, you stated that you wrote it and you got her to sign it. You said that you did this because you couldn't buy too many cars in your name as you are only allowed to sell a certain amount of cars if you are not a dealer, "Probably none," was your words. You also confirmed you had no licence and you knew that you needed one to trade in the vehicles.
(c) you explained that how you would write the receipts for the purchase of the cars at a lower price using your friend's name as the previous owners when registering them in Victoria. The purpose of that was to pay less stamp duty than you would otherwise have to if you used the actual receipts for the purchase price amounts on them.
(d) you would not provide any explanation for the lower odometer readings on the vehicles when you sold them.
(e) you admitted you used other names when advertising the vehicles for sale.
10Following the interview with police, you were released without charge.
IMPACT ON YOUR VICTIMS
11A total of ten victim impact statements were filed in this proceeding. I will summarise them in the same order they appear in Schedule A attached to these reasons.
12Mr Weeks stated he purchased his vehicle for $32,500 and sold it in May 2016 for $8,000. He had spent a total of approximately $2,900 in repairs whilst he owned the vehicle.
13Mr Roberts states that he is very stressed and worried about buying what he described as “a lemon”. He was angry at being ripped off by you. He said he spent $8,000 on repair and lost a further $6,000 when he sold the vehicle.
14Mr Connell states that he incurred repair expenses of $15,000 after paying a total of $28,000 to you for the vehicle. He also stated that he lost opportunities because his vehicle was constantly broken down.
15Mr Wilby stated that he bought the vehicle for towing horses. The vehicle broke down and caused him stress because he did not have a reliable vehicle for his work. He had paid costs of gearbox repair and engine repairs. He anticipates a loss on the sale of his vehicle.
16Mr Mackin says that he could not sell the vehicle to anyone else because he knows the odometer is wound back. He has been liable for approximately $4,000 for repairs to the vehicle you sold him. He says that he has let his family down in buying this vehicle, he used all of his savings to buy it and now his family is in a hard financial position.
17Mr Lopez says that his vehicle was only worth half of what he paid for it. He was advised the vehicle required major repairs to the suspension and the motor, which would not have been the case if the odometer reading was accurate. He has spent $1,700 on repairs.
18Mr Jackson, is yet to be finalise his compensation claim and states how he has grown up in foster care and that this was his first "new" car. He was proud of this purchase and looked forward to enjoying it with his own family. He had spent $1,250 on clutch repairs. The head of the motor was repaired for $5,500. A further sum of $5,500 is estimated for extra repairs. He stated that family camping trips had been cancelled and financial stress on his family has been high because of this vehicle purchased from you.
19Ms Bayer is a disability pensioner. She was and is a PTSD sufferer. She purchased her vehicle from you for what she describes as her retirement vehicle. She has incurred a total of $5,500 for repairs. Plans for driving around Australia are now on hold because of your offending.
20Ms Molosso estimates the direct over pricing of her vehicle at $7,000 to $10,000. This loss has caused stress to her family. The anticipated cost of repairs to her vehicle is $15,290. The vehicle is unsafe until these repairs are completed.
21All of the compensation claims, but for Mr Jacksons’, have been resolved.
YOUR PERSONAL CIRCUMSTANCES
22You are now 34 years old. You are a married man and you and your pregnant wife live with your four children aged between ten and two years.
23You were born in Lebanon. When aged four, you came to Australia with your parents and family. You are the third eldest in your family and have three brothers and four sisters. When your family first came to Australia, your parents worked as factory workers. Your primary school education commenced in Newlands Primary School. You then attended Glenroy High School to Year 7. At the end Year 7, your whole family moved back to Lebanon. You completed your secondary education to Year 12 level at the American Private School in Tripoli.
24At the age of 18, your whole family moved back to Australia. Your parents have retired to a farming life in Little River. You commenced a computer engineering course at TAFE but only completed one year of that course.
25At age 19, you met your wife at a festival. You were married in 2004 and together, you had your first child in 2006.
26Since leaving the TAFE course, you have always been employed. Initially, you worked in a fruit shop, you then worked in your father's fish and chip shop. At 27 years old, you purchased and conducted your own fruit shop for some four years in an area known as The Pines, which is in East Doncaster.
27In 2011, you purchased and operated the business known as Batman Tyres and Auto Service Pty Ltd in Coburg North. It was from this business premises that your offending behaviour was conducted. You operated your tyre and auto service business at this address until your arrest for this offending in November 2015. After your offending became known, your business declined rapidly and you closed it.
28You have, for most of 2016, been the recipient of Department of Social Security payments. There has also been some part time casual employment with family and friends.
29You have one prior criminal charge of driving whilst authorisation was suspended in 2009. You were placed on a four month wholly suspended term of imprisonment for that offending. Whilst the current offending relates to motor vehicles, this prior conviction is not directly relevant in sentencing you for the charges that are dishonesty offences.
SENTENCING CONSIDERATIONS
30The basic purpose for which a court may impose a sentence of just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.
31I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you, as an offender, are rehabilitated and reintegrated into society.
32I am also required to take into account current sentencing practices in fixing your sentence. That inquiry is directed, particularly, but not exclusively, to the kinds of sentences imposed on comparable cases and the statistics of those sentences at the time. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case as indeed they are from one another.
33I am mindful of the provisions of the Sentencing Act and in particular s.5(4C), which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed. I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case and I have had you assessed for a community corrections order. You have been assessed as being suitable. That is not the end of the matter.
34You have pleaded guilty to this charge. Your plea of guilty was indicated at an early stage. Your plea also has the utilitarian value on allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters. Your plea vindicates public confidence and in the legal process set up to protect the community.
35Your plea also is clear acknowledgement by you that you accept responsibility for your criminal behaviour on these occasions. Your plea also recognises that you are willing to facilitate the course of justice in the community and I accept your plea of guilty to these charges indicates and demonstrates some remorse on your behalf.
36On the day of your plea hearing on 24 November 2016, it was submitted your life had been on hold since the day of your arrest. The issue of compensation to your victims is a significant consideration when weighing up the appropriate sentence. Prior to 24 November 2016, the hearing had been adjourned to allow for the compensation of the victims to be determined and satisfied. You have a property that is subject to a Confiscation Act restraining order. The parties agree that there is sufficient equity in the restrained property to pay for the total of the compensation orders relevant to this offending.
37The day before your arraignment before me, you were served with a schedule, which was Exhibit 3 on the plea, claiming a total of $241,024 in compensation. Mr Mandy submitted that at that time he did not sufficient detail or documentation for the individual claimants. He announced that you were prepared to offer an across the board 66 per cent of the totals claimed by the claimants to settle each of the compensation claims. The prosecution on that day was not in a position to agree to your offer of settlement. I note here for completeness that the total sum of money from your sales was $320,200. You had benefited a total of $153,682 as a difference between your purchase price of the vehicles and your sale price to your victims.
38Mr Mandy submitted that after the cost of transport, transactions and improvements to the vehicles which you performed in your work place, your real benefit was in the order of $100,000 to $120,000. Your offer of 66 per cent of compensation amounted to a total of approximately $159,000, a sum which is in excess of the difference between the two purchase prices, that is your sale price to your victims and your purchase price at the auctions.
39I adjourned the sentence of this matter to enable the finalisation of the claims by today. I have been informed this morning that the compensation of ten of the 11 victims has been resolved. The total compensation to be paid by you has been agreed at $142,461. That is for the ten. The only outstanding claim for compensation is by Simon Jackson. I will fix a hearing date for that application later this morning.
40The level of seriousness of your criminality is indicated by the following factors;
(a) the period of time over which the offending occurred, that is from May 2012 to May 2015, a period of three years.
(b) there are 11 separate victims impacted by your offending.
(c) you have benefited a sum of money in the range of $120,000 and $150,000.
(d) this type of offending is extremely difficult to detect and prosecute.
(e) this offending undermines the confidence that members of the public can have in the second hand car market.
(f) your offending was motivated by greed and not need.
(g) it is systematic and calculated offending in its nature.
41The prosecutor submitted that an appropriate sentence was an immediate term of imprisonment to reflect the need to satisfy the principle of general deterrence. The prosecutor relied on a decision of Judge Maidment, a fellow judge of this court, of DPP v Samer Hammoud [2016] VCC 844 to support that submission. The factual basis in Hammoud's case and your case are different in the following terms:
(a) the length of offending in Hammoud's case was six years versus your three.
(b) the amount of money in Hammoud's case was $937,510, versus your $320,200.
(c) the number of cars Mr Hammoud dealt with is said to be 51. In your case it was 11.
(d) Mr Hammoud had direct prior convictions, which you don't.
42Your offending is serious. The principles of specific deterrence, general deterrence and just punishment can be satisfied by the imposition of a community corrections order. You are sentenced on the basis that Charge 1, that it is a course of conduct charge.
SENTENCE
43On Indictment G10870345, on Charge 1, you are convicted and sentenced to a community corrections order for a period of three years. The conditions of that community corrections order are supervision and unpaid community work of 250 hours. You are to report to the Broadmeadows Community Corrections Centre on 17 February 2017 at 4 pm.
44Pursuant to s. 6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have sentenced you to two years with a non-parole period of 15 months.
45On Summary Charge 12, you are convicted and fined $40,000.
46MR ROPER: Your Honour, there are some draft orders for compensation. I believe they were also emailed to the court, but there are some copies there provided by my instructor, Your Honour. There is quite a few of them.
47HIS HONOUR: What I will do is I will sign these compensation orders. I will just do that right now. There is a community corrections order here.
48MR MANDY: Thank you, Your Honour.
49HIS HONOUR: I will sign the rest of these compensation orders in chambers.
50MR ROPER: If Your Honour pleases.
51HIS HONOUR: Does your client seek a stay for payment of the fine?
52MR MANDY: Yes, Your Honour. I will seek a stay of six months, and then we will work it out after that. Hopefully that will resolve the other financial matters and there will be some equity left.
53HIS HONOUR: Yes. Do you want to say anything about that, Mr Prosecutor?
54MR ROPER: No, Your Honour.
55HIS HONOUR: Yes, a stay of six months to pay the fine.
56MR ROPER: It may well be sorted beforehand.
57HIS HONOUR: Yes, thank you.
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