Director of Public Prosecutions v Rayes

[2025] VCC 226

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-24-01466

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAJY RAYES

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2025
DATE OF SENTENCE:	6 March 2025
CASE MAY BE CITED AS:	DPP v Rayes
MEDIUM NEUTRAL CITATION:	[2025] VCC 226

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Wrongly accepting payment – Receiving a deposit under a domestic building contract of more than 5% of the contract price – Receiving a deposit under a domestic building contract of more than 10% of the contract price – Entering into a major domestic building contract without being a registered builder – Relevant criminal history – Non compliance of VCAT orders – Guarded prospects of rehabilitation. 

Legislation Cited:      Competition and Consumer Act 2010 s 158(7)(b)(ii); Domestic Building Contract Act 1995 ss 11(1)(a), 11(1)(b), 29(1), 29A.

Cases Cited:

Sentence:                  Convicted and fined $16,000.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms T Saville	Office of Public Prosecutions
For the Accused	Ms C Khoury	SLKQ Lawyers

HIS HONOUR:

Introduction

1Najy Rayes, you have pleaded guilty to one rolled up charge of wrongly accepting payment contrary to s 158(7)(b)(ii) of the Competition and Consumer Act 2010, which, for an individual, carries a maximum fine of $2,500,000 (Charge 1).

2You have also pleaded guilty to the following related summary offences:

(a)   one charge of receiving a deposit under a domestic building contract of more than 5% of the contract price contrary to s 11(1)(a) of the Domestic Building Contract Act 1995 (‘Domestic Building Contract Act’) which carries a maximum penalty of 100 penalty units (Summary Charge 8);

(b)   one charge of receiving a deposit under a domestic building contract of more than 10% of the contract price contrary to s 11(1)(b) of the Domestic Building Contract Act which carries a maximum penalty of 100 penalty units (Summary Charge 9);

(c)   one charge of entering into a major domestic building contract without being a registered builder contrary to s 29(1) of the Domestic Building Contract Act which carries a maximum penalty of 500 penalty units (Summary Charge 15); and

(d)   one charge of entering into a major domestic building contract without supplying a contract information statement contrary to s 29A of the Domestic Building Contract Act which carries a maximum penalty of 60 penalty units (Summary Charge 22).

3You have also admitted your Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5While your name is Najy Rayes you are also known as Mark Rayes. You are the sole director of Melbourne Landscape Design Pty Ltd (ACN 638 340 342) (MLD). MLD offers services such as paving, driveways, painting, demolition, and the building of steps, fences and gates.

6On 6 January 2023 and 13 September 2023, Consumer Affairs Victoria (CAV) received confirmation from the Victorian Building Authority (VBA) that you were not and have never been a registered builder.

Charge 1

7Between 15 March 2021 and 27 December 2023, you in trade or commerce, accepted payment for goods or services and failed to supply all the goods or services, within the period specified or within a reasonable time in relation to the following victims:

Lisa Wetuschat - 15 March 2021 to 26 April 2021

8On 15 March 2021, you attended Ms Wetuschat’s premises and provided a quote to renovate the swimming pool and backyard area in the amount of $37,830 with a 50% deposit required.

9A deposit of $8,640.25 was paid towards the 50% deposit in advance of the works which were due to commence on 19 April 2021. They were to be completed within three weeks. On 22 March 2021, a second payment of $2,033 towards the 50% was made and on 23 March 2021 a third payment of $4,500 was made.

10On 19 April 2021, you attended the premises to commence works and provided a handwritten variation for the garden path and garden bed works and requested payment of $3,500. Payment of $1,750 was made to cover the material, which was never delivered.

11That same day you provided a third quote which related to the main scope of works in the amount of $30,000.

12The total amount paid to you was $28,378.75 for progress payments plus material. Ms Wetuschat spent four months dealing with you and the works were ultimately incomplete and defective. During this period you did not attend when you said you would and failed to provide any plans on how to progress the works.

13The scope of works was largely not commenced and the damage and works performed by you required rectification.

Polly Kuan - 17 May 2021 to 31 May 2021

14On or about 17 May 2021 you attended Ms Kuan’s premises to provide a quote for demolishing and building a new front lawn and steps, and painting. You quoted $17,000 and required a $5,000 deposit which was paid in two instalments. The works were to be completed in two weeks.

15You attended the site and commenced work the following day. On 19 May 2021 you requested a further $7,000 and were accidentally paid $7,500.

16Ms Kuan felt pressured by you in relation to the conduct of the works as you were ‘shouting and flaring your volatile temper.’ You also told Ms Kuan that additional work caused the cost of the project to increase from $17,000 to $23,000.

17Between 21 May 2021 to 30 May 2021, you did not perform any work however were present at the site. On 31 May 2021 you requested a further $5,000 in cash which was paid to you. At this point in time the works were incomplete, and you continued to provide excuses to Ms Kuan.

18On 15 June 2021 the work remained incomplete, and you insisted on Ms Kuan making an additional payment of $5,500 for 65 square meters of pavers when approximately 30 square meters were required. The paving work was ultimately left incomplete by you.

19On 20 June 2021 Ms Kuan sought assistance from a male friend as she believed you had demonstrated ‘discrimination when speaking with women and had also made some racist remarks’. You refused to speak to him. 

20There was subsequent communication between Ms Kuan and yourself in relation to the completion of the work. On one occasion you called Ms Kuan and verbally abused her by repetitively saying ‘don’t run around being a rat, dirty rat of Glen Iris, slime.’

21You were asked to leave the property. You refused to do so, and harassed and abused Ms Kuan which caused her to call the police. Police attended the scene and directed you to leave.

Lucy Luo - 4 November 2021 to 17 November 2021

22On or around 4 November 2022 you attended Ms Luo’s property to provide a quote for landscaping works, fencing, paving and excavation work. You provided a quote in the amount of $25,000 with works to commence immediately and be completed within two to three weeks. A deposit of $10,165 was paid and you commenced work.

23On 9 November 2021 you provided Ms Luo with a second invoice for $12,000 for additional work and requested further payment of $2,300 which was paid. On 17 November 2021, Ms Luo paid a third amount of $10,000 to you.

24You did not return to the site providing numerous excuses to Ms Luo. As a result, the works were left incomplete and required rectification. You did not provide a refund to Ms Luo.

Zach Zaffiris - 12 March 2022 to 19 March 2022

25On 12 March 2022 you attended Mr Zaffiris’ property to provide a quote for installing concrete pavement. You quoted $7,400 and required a 50% deposit, works were to commence the following week, and estimated completion was 4-5 days. Mr Zaffiris paid the deposit via bank transfer.

26On 16 March 2022 you commenced work and in the coming days caused plumbing work to be completed which was not authorised by Mr Zaffiris. You requested a further progress payment of $1,700 and $2,300 was paid to you.

27On 31 March 2022 you returned to the site and explained that the job was much more work than expected. On 1 April 2022 you returned and said there was extra work required at a cost of $800 and that a further progress payment of $1,400 was required.

28After this, you did not return to the site to complete the works and the last time Mr Zaffiris heard from you was 9 June 2022.

Priya Palachanda - 31 January 2022 to 24 March 2022

29On 28 January 2022 you attended Ms Palachanda’s premises to provide a quote for concreting a strip drain for the driveway and installation of new lawn. You quoted $6,100 with works to commence on 4 February 2022 and be completed within four days. You requested a 50% deposit which was paid.

30On 9 February 2022, you provided an additional quote to build a timber seat in the Alfresco area for an additional $2,000. You indicated that you were looking to commence the works in the week commencing 28 February 2022, however, you did not return providing various excuses.

31On 24 March 2022 a further payment was made to you in the amount of $1,175 for materials. You failed to return to the site and as of 22 April 2022 had provided 15 different start dates over an 82-day period. You continued to provide excuses to Ms Palachanda and did not return to the site to finish the uncompleted work. The last time Ms Palachanda heard from you was in August 2022.

Darshan Parick - 27 May 2022

32On 27 May 2022 you attended Mr Parick’s property to provide a quote for concrete works. You provided a quote in the amount of $15,000 and requested a deposit of $7,500 which was paid. 

33On 28 May 2022 you attended the premises and dug up some concrete, leaving a mess. You stated you would return on 6 June 2022, however, you did not. During June, July and August 2022, Mr Parick attempted calling and texting you but did not receive any response. The works were left incomplete and Mr Parick did not receive any refund from you. 

Meyram Kara - 27 December 2023 to 11 January 2024

34On or around 27 December 2023, Ms Kara and her husband had a conversation with you where they agreed that you would fix their fence for $400. Mr Kara then went overseas, and you told Ms Kara that the fence needed to be replaced at a cost of $7,000 with a 50% deposit.

35You proceeded to remove the side fences without consent, causing Ms Kara to feel that she had to agree as there was no other choice or option. Accordingly, she asked her daughter to pay the deposit for her. Ms Kara states that whilst you were at her home doing works, you became very pushy and started telling her that she should get you to do other jobs while you were there.  

36You later said you would fix the pergola and verbally gave a quote of $22,000 which was reduced to $18,000 the following day. Ms Kara did not feel ‘100% okay’ but signed the quote. You then kicked the pergola fence and started demolishing.

37You provided a total of three quotes. The third quote was the final quote which was for a total of $46,000 with a deposit of $23,000. This quote was provided by you as you indicated that new material was required, and further work was required. Ms Kara caused a further $19,500 to be paid to you.

38You left the works incomplete and defective and refused to refund any of the deposit paid. The last time Ms Kara heard from you was on or around 19 January 2024.

Summary Charge 8

39Between 15 March 2021 and 27 December 2023, you received a deposit, from two consumers under a domestic building contract of more than 5% of any contract price that is $20,000 or more before starting any work under the contract.

Summary Charge 9

40Between 15 March 2021 and 27 December 2023, you received a deposit, from three consumers under a domestic building contract of more than 10% of any contract price that is less than $20 000 before starting any work under the contract.

Summary Charge 15

41Between 15 March 2021 and 27 May 2022, you entered into five major domestic building contracts without being a registered building practitioner.

Summary Charge 22

42Between 15 March 2021 and 27 May 2022, you entered into five major domestic building contracts without first giving the building owner a contract information statement in a form approved by the Director. 

43On 7 June 2023, Consumer Affairs Victoria invited you to attend for the purpose of participating in a record of interview. On 9 June 2023, you telephoned Investigator Quinn and stated that you will not be attending the record of interview.

44In 2019 Consumer Affairs issued two infringements to you for wrongly accepting payment and for accepting payments from consumers and failing to provide a service.

Nature and gravity of the offending

45One of the objects of the Competition and Consumer Act 2010[1] is to protect consumers from conduct such as yours and it is clear that Parliament views such conduct seriously which is reflected in the maximum penalty applicable to Charge 1, being $2,500,000 for an individual.

[1] Section 2.

46Charge 1 is a rolled up charge relating to seven victims over a period of some two years and nine months and a total of $108,568. In each case the victims paid deposits for works that you failed to complete. In some cases further payments were made by victims following your requests. While Charge 1 relates to the $108,568 paid by way of deposit or progress payments, for which you fall to be sentenced, I note that four of the victims were required to rectify your incomplete works to a total of $96,255, creating a further financial impact. Further, I note that when confronted by one of the victims concerning your work, you abused her and the police were called to attend.

47The related summary offences are also each rolled up charges relating to the same victims the subject of Charge 1; however they are constituted by separate conduct and breaches of the Domestic Building Contracts Act 1995, including entering into domestic building contracts without being a registered builder.

Personal circumstances

48You were born and raised in Burwood to migrant parents alongside your two brothers and one sister.

49You successfully completed your secondary education and subsequently enrolled in TAFE studying civil engineering and computer-aided drafting. You deferred these studies however to work in your parents’ convenience store as they required support running the family business. You acknowledge that throughout periods of your life you have experienced difficulties arising from negative social influences and drug use.

50You met your wife overseas in 2007. You have been married for over 16 years and share two children together. 

51You successfully operated your landscape maintenance and design business for 15 years, sustaining customers throughout the challenges of the COVID-19 pandemic. However, in late 2020 your father passed away suddenly causing you and your family profound distress. Your mental health suffered throughout this period and you became the sole carer for your elderly mother.

52Shortly after, your sister-in-law passed away overseas compounding the emotional difficulties you and your family were facing at the time. You and your wife travelled overseas to be with your wife’s family and consequently you withdrew from your work and social relationships.

53You admit that the difficulties you were facing during the pandemic coincided with  your poor business management and unprofessionalism, ultimately leading to your significant financial liabilities.

54Since your offending you have become an active churchgoer and member of the Druze Christian community maintaining a disciplined routine of early morning exercise and meditation. Two character references were tendered on the plea which attest to your spirituality and faith in God.

55Your wife further speaks to your dedication as a father and your involvement in the lives of your children describing you as a loving and devoted partner. Your wife was severely injured in a fall late last year and you have become her primary carer.

56Franceso Di Gregorio, a fellow customer and friend of yours also speaks to your good character maintaining that you are a person of strong morals and ethics. I have taken these references into account.

Sentencing considerations

57I first take into account your plea of guilty. By your plea you have saved considerable court time and expense thereby advancing the course of justice. Importantly, your plea avoids the need for the victims to have to give evidence. You are entitled to a discount as a result of your plea of guilty.

58It was submitted that you are genuinely remorseful for your conduct. However, as was discussed during the plea hearing, there is little evidence of remorse over and above the plea of guilty. Your offending related to a period between 2021 and 2023. In 2023, VCAT made orders against you in relation to two of the victims and a further order in 2024 in relation to a third victim. You have not complied with those orders and indeed have not repaid any amount to any of the victims despite the submission made on your behalf that you have the intention to make reparation.

59For similar reasons I have some concerns in relation to your prospects of rehabilitation. You have a lengthy prior criminal history containing numerous dishonestly related offending and you have served a number of terms of imprisonment for such offending. Your prior history also reveals numerous breaches of court orders. In the circumstances in my view your prospects of rehabilitation can only be described as guarded.

60Deterrence, both general and specific are prominent sentencing considerations. Denunciation of your conduct and protection of the community also must carry weight in the sentencing discretion. The charges to which you have pleaded guilty are designed to protect consumers. Others must be made aware that if they engage in conduct such as yours, they will be met with significant financial penalties.

61In assessing the fine to be imposed, I have taken into account your personal and financial circumstances. Further while the related summary offences represent distinct conduct, they arise from the same circumstances and victims and thus I take into account the principle of totality when considering the penalty on those charges.

Sentence

62Mr Rayes, would you please stand.

63Najy Rayes, on Charge 1, wrongly accepting payment you are convicted and fined $15,000. On summary charges 8, 9, 15 and 22, you are convicted and fined an aggregate of $1000 making for a total fine of $16,000.

64Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have fined you $22,000 with conviction.