Director of Public Prosecutions v Hayvari
[2019] VCC 410
•5 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-18-2783
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| MARJAN HAYVARI | Respondent |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2019 and 5 April 2019 | |
DATE OF SENTENCE: | 5 April 2019 | |
CASE MAY BE CITED AS: | DPP v Hayvari | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 410 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Director’s appeal – Unlicensed Motor Car Trading – Illegal selling of 54 motor vehicles over a 13 month period – one of the initial prosecutions of its kind – whether conviction appropriate – offence subject to fine only – objective seriousness of offending – convicted and fined a total of $26,175 – costs orders made
Legislation Cited: Motor Car Traders Act1986; Motor Car Traders Regulations2008; Sentencing Act1991; Criminal Procedure Act 2009
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms S Pillai | Solicitor for the Director of Public Prosecutions |
| For the Respondent | Mr K Boden | Starnet Legal |
HER HONOUR:
1 This is an appeal by the Director of Public Prosecutions on behalf of the Director of Consumer Affairs Victoria from orders made in the Magistrates’ Court at Broadmeadows on 12 October 2018. You were convicted of carrying on a business of trading in motor cars without being the holder of a motor car trader’s licence, pursuant so s7 of the Motor Car Traders Act 1986 (“the Act”), and were fined the sum of $10,000.
2 Your offending is summarised in the appellant’s summary (Exhibit “A”). For a period of approximately 13 months between 12 March 2016 and 17 April 2017, you purchased 54 motor cars from an auction house operated by Manheim Pty Ltd (“Manheim”) and on-sold those cars without being the holder of a motor car trader’s licence. On each occasion, you signed a buyer registration card which nominated your husband, Mohammed Qhasemi Mehr, to bid on your behalf. When each of the cars was later on-sold, you signed the application for transfer of registration to the purchaser. Over the period of offending, you paid a total of $121,078.16 to purchase the 54 cars. This amount included the sum of $24,778.16 by way of Manheim’s fees.
3 The transfer documents in relation to the 54 cars reveal that the total price for which they were on-sold was $102,500, which would mean that, overall, this illegal business incurred a loss of $14,830.16. However, the appellant does not accept that the transfer documents signed by you accurately reflect the actual figure for which each car was on-sold. In this regard, I note that 40 of the 54 vehicles appear to have been sold at a loss.
4 This is one of the initial investigations conducted 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.
5 Section 7A(1) of the Motor Car Traders Act 1986 provides:
“A person who buys, sells or exchanges, or offers to buy, sell or exchange, 4 or more motor 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.”
6 The maximum penalty specified in s7(1) of the Act for carrying on the business of trading in motor cars without a licence 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.”
7 A person who purchases a car from an unlicensed motor car trader, like yourself, is not given the same protection they would have if they purchase from a licensed motor car trader. The legislation and regulations include an entitlement for a purchaser 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 Mr Boden appeared on your behalf at the appeal. He stated that you are 27 years old, having been born in Iran on 6 July 1991. In 2010 you came here as a refugee, together with your husband and the oldest of your four children. You were detained for 4 months on Christmas Island, where you gave birth to your second child. Your four children range between four months and 10 years of age. You undertook some English studies after arriving in Australia but have not pursued these and require a Farsi interpreter.
10 At the plea hearing on 18 March 2019, Mr Boden stated that you were engaged in the full time care of your children and have not worked. I queried, “except for regularly attending the auctions?” Mr Boden acknowledged this was so, but stated that you had not attended any further auctions or sales since the last date of offending. After the conclusion of the hearing on that day, Mr Boden emailed additional written submissions dated 18 March 2019 which were received by the Court on 19 March 2019. In those submissions, Mr Boden stated that he had clarified his instructions and that you did not, at any time, attend Manheim or see any of the motor cars, but signed documents presented to you by your husband. He submitted that the fact that you only facilitated the transactions by signing documents mitigated your culpability. In those additional written submissions, Mr Boden indicated that you and your husband were prepared to give evidence to support this submission if required. In order to expedite the matter, the Court sent a request to your legal representatives that a signed and sworn affidavit to this effect be provided. An affidavit sworn by you on 26 March 2019 and an affidavit sworn by your husband on the same day were filed and served. At the adjourned hearing, today, 5 April 2019, the prosecutor, Ms Pillai, indicated that she wished to cross-examine your husband on the contents of his affidavit. I inquired whether your husband had obtained independent legal advice and the matter was stood down to enable him to do so. Your counsel advised the Court that after receiving such legal advice, your husband would not be giving evidence and his affidavit was not tendered.
11 Your affidavit was tendered as Exhibit 2. It states that you never attended Manheim and never saw any of the 54 cars the subject of the charge. You gave your husband authority to attend the auctions and to purchase cars in your name, and you authorised him to subsequently sell those vehicles. You signed documents in relation to the cars which were presented to you by your husband. You understood the documents to relate to the purchase and sale of cars. The content of your affidavit (Exhibit 2) is at odds with the content of a statement by Charles Dirk Cumming, director of Manheim, sworn on 16 July 2018 (Exhibit “D”). Mr Cumming states that buyers must register by completing a Buyer Registration card which includes mandatory information. This is done at the Manheim Registration desk, where buyers must produce evidence of their identity to Manheim staff to enable them to register and receive a buyer and bidder number. They must also produce photographic identification and a tax invoice for purchase of the car before the car may be driven through the gate to leave Manheim’s premises. [1]
[1] Statement of Charles Dirk Cumming, dated 16 July 2018 at paragraphs 12-13 and 17
12 I am unable to determine one way or another whether you actually attended Manheim to purchase the cars. I must say that I regard the plea in mitigation on your behalf as having been less than a full and frank disclosure to the Court of the circumstances surrounding your offending. Whilst I have a strong suspicion that your husband is behind this whole scheme, the fact is that you have pleaded guilty to the charge and have admitted that you were prepared to sign the necessary documents to facilitate the buying and selling of cars. In your affidavit, you swore that you understood the purpose of these documents, namely, that they related to the purchase and sale of cars. By signing several documents in relation to each transaction for the purchase and sale of a car, you have participated in an illegal business of trading in motor cars. It has not ever been put to the Court that you were subject to any duress. Rather, it was put to the court that you committed this to assist your financial situation. I regard your culpability as high, given that your offending involved persistent, ongoing and regular breaches of the law.
13 You and your husband live in a household with your husband’s brother, along with your children. You, your husband and your husband’s brother are all in receipt of Centrelink benefits. The Court was told that your husband’s brother suffers schizophrenia, although no material relating to this was provided to the Court. He receives a disability pension for himself. Your husband receives a carer’s pension for his brother. This is apparently $520 per fortnight. You receive $610 per fortnight by way of some other Centrelink benefit. Your counsel told the court that many of the cars had been purchased using your husband’s credit card and the credit card debt had been paid back once the vehicles were sold. However, I note from Manheim’s records that, over the period of offending, there were some 32 occasions upon which cash was paid in relation to transactions, albeit that the cash payment did not always cover the total purchase price and fees payable. The amounts of cash paid varied from $140 to $4245. The total amount of cash paid to Manheim relating to the purchase of cars was $46,378.31.
14 Regardless of whether a credit card or cash was used for the purchases, in spite of your alleged impecuniosity, you managed to come up with $121,078.16 over a 13 month period to pay for purchase of the 54 cars and the associated Manheim fees. Generally speaking, there was an expenditure well in excess of $1,000 most weeks and, in some weeks it was several thousands of dollars. On 9 occasions, two vehicles were purchased on the same day and, on one occasion, 3 vehicles were purchased on one day. It is my role to impose a sentence only on the charge before the court. However, I consider that this is a case where it would be appropriate for the Director of Public Prosecutions to draw to the attention of Centrelink, that you were engaged in this illicit business, with your husband as your alleged appointed agent.
15 Tendered on your behalf was a report from Edwin Kleynhans, psychologist, dated 18 October 2018 (Exhibit “L”). The report, itself, ran to many pages and was of a rambling and unimpressive nature. In essence, Mr Kleynhans stated that you had suffered generalised anxiety for most of your life and he considered that you also had Post-Traumatic Stress Disorder as a consequence of your experiences in fleeing from Iran and being in detention in Australia. He stated that these experiences have caused symptoms of hyper-vigilance, flashbacks, nightmares, avoidance and insomnia. He also noted that you suffer from a persistent depressive disorder, which he seemed to consider was of recent onset following the birth of your child (post-natal depression), but he also referred to you being anxious and depressed about the matters the subject of the charge and a potential conviction. Thus, he seemed to be saying that a considerable amount of your depression and anxiety were reactive to your legal situation. He noted that, in recent times, you have been placed on the antidepressant medication, Zoloft.
16 I consider that Mr Kleynhans’ report was not a careful and objective report. Indeed, he overstepped the appropriate limits of an expert report in recommending “a compassionate consideration”. He went on to state that he was “anticipating [your] prognosis to be negative if [you get] a conviction”. He stated that a Community Correction Order would be more favourable to your mental health, although this was not advocated by Mr Boden. It is difficult to know what weight to put on an expert report which enters into the field of advocacy in this fashion. I do not accept that your anxiety attacks, depressed mood and symptoms of Post-Traumatic Stress Disorder clouded your sense of judgment when you engaged in the activity which is the subject of the charge. Your wrongdoing took place on a regular, weekly basis over a period of 13 months. You facilitated the purchase and sale of these vehicles by your husband, as your alleged agent, and your sworn affidavit acknowledges that you understood what was going on.
17 I do acknowledge that you have had a traumatic background fleeing from Iran, which involved perilous journeys by boat with a young child and, then, being detained for a number of months on Christmas Island, where you gave birth to your second child. I acknowledge that the experiences of such trauma can be long lasting. I take your condition of Post-Traumatic Stress Disorder into account as part of your personal circumstances, even though I do not consider that it mitigates your moral culpability in the way that Mr Kleynhans suggests. It is difficult to know how much of your anxiety and depression is reactive to your legal situation and how much has been long term or since the birth of your last child, or perhaps simply your reaction to living in a country where you cannot speak the language and claim to have had financial difficulties. However, I take these psychological problems into account in a general way. I accept that it must be difficult to meet the demands upon you of having 4 children and running a household when you are experiencing such psychological distress.
18 I take into account that you have no prior or subsequent convictions and that your plea of guilty was entered at the earliest possible opportunity. Although the psychological report states that you are remorseful for your offending, I am unsure whether this is so, as distinct from you feeling ashamed about it. Nevertheless, you are entitled to a discount on the sentence which otherwise would have been imposed had it not been for your early plea of guilty. In this regard, I note that the investigation by Consumer Affairs Victoria has involved detailed analysis of many different records. I consider that your plea of guilty has considerable utilitarian benefit in having saved the time and expense of a contested hearing. You are entitled to credit for this.
19 The circumstances presented to the Court are that you and your husband together have Centrelink benefits which amount to $1,130 per fortnight and, in addition, your husband’s brother also receives a Centrelink benefit. You have four children to support and rent of $325 per week. I take into account that these factors, on their face, indicate that you are not well off, but there was no evidence that you or your husband had worked at all since you arrived here in Australia. This country accepts many refugees, many of whom are hardworking and make a valuable contribution to our society in a variety of ways. There is no evidence that you and your husband could be so described. Notwithstanding that you claim you have very limited means, there is no believable explanation as to how you came up with $121,078.16 to purchase the cars and pay Manheim’s fees over the period of your offending.
20 I accept the prosecution submission that it is highly unlikely that the amounts on the transfer documents do represent the actual price for which the vehicles were on-sold. It makes no sense that you would go to the trouble of purchasing vehicles so regularly in order to sell 40 out of the 54 vehicles at a loss. This same factor does not sit well with the explanation that you used your husband’s credit card to make purchases, then repaid the credit card debt from the sales. It is difficult to understand how you could repeatedly pay by credit card the cost of a purchase of a car when so many of the cars were allegedly sold at a loss. Your lack of frankness with the Court about the circumstances of your offending leads me to have reservations about whether you are remorseful.
21 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.”
22 I have already referred to the penalties specified in s7(1) and (2) of the Act. These provisions make it clear that Parliament intended that the financial penalties be such as to deter this conduct. Given that your conduct continued for so long and with such regularity, albeit that it has been embodied in the one charge, there is a need for emphasis upon specific deterrence, although I do note that there is no allegation of subsequent offending by you. The Court must denounce your conduct and impose just punishment. The principle of general deterrence which must be the primary sentencing objective. This means sending a message to others who regularly flout the law, like you have done, that they will be financially punished and their illegal trading will not be worth their while.
23 Section 52 of the Sentencing Act requires me to take into account your financial circumstances and the nature of the burden that any fine will impose. I have already referred to those and the fact that how you came by the amount of $121,078 to purchase the cars is unexplained. Further, I must have regard to the matters specified in s5(2) of the Sentencing Act. This includes your previous good character and the fact that you have pleaded guilty at the earliest possible opportunity, to which I have already referred. I must also take into account any injury, loss or damage resulting from your offending. There is no evidence that any person who purchased a car from you suffered from not having the protections available to them that they would have had, had you been a licensed motor car trader. However, your conduct is clearly something which places a licensed motor car trader who does comply with the law at a competitive disadvantage. Indeed, it was the complaints from such traders which prompted the investigation by Consumer Affairs Victoria.
24 The maximum penalty prescribed by the legislature is a significant factor in sentencing for the offence. I regard the persistent and regular nature of the conduct which makes up the charge as making this offending serious. As I have said, I consider your culpability high because, by continuing to sign multiple documents over 13 months, you have enabled your husband, as your alleged agent, to go on purchasing vehicles and selling them in this illegal way.
25 Your counsel submitted that a fine should be imposed without conviction. He relied upon your prior good character and the potential for a conviction to impact adversely on your chances of finding paid employment if you were minded to seek it. These are relevant considerations pursuant to s8 of the Sentencing Act, although I do note that you have not sought employment in the 9 years that you have been in Australia. That does not mean that you may not do so in the future, however, I am unable to assess the chance that that will, in fact, occur. However, the nature of the offending, which involves so many transactions over a 13 month period in flagrant disregard of the law is such that I consider it would be inappropriate not to record a conviction. In my view, a non-conviction disposition would not serve to adequately denounce this conduct and send a message of general deterrence to the community.
26 In determining the amount of a fine, a court must consider the maximum penalty imposed by the legislature, the gravity of the circumstances of the offending and the capacity of the offender to pay. Generally speaking, a court should impose a fine which is in proportion to the gravity of the offence.
27 In this case, it has been put by your counsel that you are in receipt of Centrelink benefits with no other income and, after payment of rent, you have little excess money.
28 It is a recognised sentencing principle that a financial obligation imposed by a court should be commensurate with the ability by the offender to pay, however, it is incumbent on an offender to put before the court her financial position. Effectively, it is put on your behalf that you are in an impecunious position. However, you have never explained how you managed to come by $121,078.16 to spend on purchasing cars over the 13 month period, nor, where the $102,500 which you allege you obtained from sales went, albeit that you claim to have made a loss of some $14,830.16. There is a very obvious tension between the conduct comprising the offending and the alleged impecunious state as a recipient of Centrelink benefits. I do not regard you as having provided a full and frank disclosure to the Court of the circumstances surrounding your offending or your financial circumstances generally. In such a situation, it is difficult to assess your capacity to pay a fine. The offending is serious and the fine imposed must reflect that fact.
29 I formally set aside the orders of the Magistrates’ Court made on 18 October 2018 and, in their stead, impose the following sentence: Pursuant to s7(1), you are convicted and fined $10,800. Pursuant to s7(2), I impose an additional penalty of $15,375. This is 15 per cent of the known sale price of the 54 motor cars ($102,500). I have made it plain that I consider the actual sale prices would have totalled more than this amount, but that is the only figure that is able to be proven. Thus the total fine imposed is $26,175.
30 I direct that the fine be paid to Fines Victoria and henceforth paid into the Motor Traders’ Guarantee Fund, a trust fund managed by Consumer Affairs Victoria. I also order that you pay costs in the sum of $6,069.13 bearing in mind the detailed and time consuming nature of the investigation necessary to bring this charge.
31 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your plea of guilty, I would have imposed a fine of $34,900.
32 Pursuant to s15 of the Appeal Costs Act, I certify the respondent’s costs on appeal for 1 day, namely 18 March 2019.
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