El Sayed v Commissioner for Consumer Affairs - [2002] SASC 416

EL SAYED v THE COMMISSIONER FOR CONSUMER AFFAIRS
[2002] SASC 416
Magistrates Appeal: Criminal

MULLIGHAN J The appellant pleaded guilty to carrying on business as a dealer in the selling of second-hand motor vehicles between 18^th July 1999 and 18^th July 2000 contrary to s 7 and s 50 of the Second-hand Vehicle Dealers Act 1995. He was convicted and fined $5,000. He appeals against that sentence on the ground that it is manifestly excessive.
During that year the appellant sold five Holden Commodore motor vehicles. The first vehicle was advertised for sale by the appellant on 15 occasions in The Advertiser newspaper, on two occasions in the Trading Post and on at least one occasion in the Sunday Mail newspaper. He sold the vehicle to a purchaser who went to his home where he lived with his parents. The appellant told him that the vehicle belonged to his mother who was selling it because she had bought a later model Commodore station wagon. He stated the purchase price to be $12,500 provided it was paid in cash and he said that there were no maintenance books or a manual because his mother had cleaned out the motor vehicle and thrown them away. The learned Magistrate was not informed as to when this vehicle was purchased and at what price.
The second motor vehicle was purchased by the appellant for $4,050 from Universal Motor Auctions on 15^thSeptember 1999. He advertised the vehicle for sale on two occasions in The Advertiser newspaper and on one occasion in the Trading Post. In January 2000 the person who eventually purchased the motor vehicle saw an advertisement in The Advertiser newspaper and went to the appellant’s home. The appellant informed him that the service history of the motor vehicle was up to date and he would have no problems with the motor vehicle. When asked why the vehicle was for sale the appellant said that he was a university student and, as his father was ill, he intended to use his father’s vehicle instead of his own vehicle. The purchaser acquired the vehicle for $12,500, $500 of which was paid in cash and the balance by a bank cheque.
The third vehicle was purchased by the appellant for $5,600 from Fowles Auction Group on 23^rd February 1999. He advertised the vehicle for sale on 10 occasions in The Advertiser newspaper between 13^th November 1999 and 17^th June 2000. The person who eventually bought the motor vehicle saw an advertisement in the newspaper in June 2000 and arranged to meet the appellant at his home. The appellant said that the vehicle had been owned by his mother for about 12 months and she had recently purchased a later model vehicle because she had received an inheritance. He also told the purchaser that the vehicle had been involved in a minor accident and $250 had been spent on repairing the front bumper bar. The appellant sold the vehicle to…

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.

Continue reading El Sayed v Commissioner for Consumer Affairs

Details

AGLC: El Sayed v Commissioner for Consumer Affairs [2002] SASC 416
Case: [2002] SASC 416
Decision Date: 13 December 2002

CaseChat Overview and Summary

In El Sayed v The Commissioner for Consumer Affairs, the appellant, El Sayed, appealed against the sentence imposed by the learned Magistrate, arguing that the fine was manifestly excessive. The appellant pleaded guilty to selling second-hand vehicles without a dealer's license, in breach of the Second-hand Vehicle Dealers Act 1995. The court needed to determine whether the fine was excessive and if the appellant's plea of guilty, character, and financial position warranted a different outcome. The court found that the learned Magistrate erred in making a finding adverse to the appellant that he had made a substantial profit from the sale of the motor vehicles. The appellant was not given the opportunity to call evidence to disprove this finding, leading to a miscarriage of justice. The court accepted that the appellant was unaware that his conduct constituted an offence and that he did not profit from the sale of the vehicles. Considering the appellant's good character, antecedents, and remorse, the court exercised its discretion under s 16 of the Criminal Law (Sentencing) Act 1988, imposing a fine of $500 without recording a conviction.

The court set aside the conviction and fine imposed by the learned Magistrate. The appellant was fined $500 without recording a conviction. This decision was based on the appellant's lack of awareness that his actions constituted an offence, his good character, and the limited profit he made from the sale of the vehicles. The court took into account the appellant's remorse, his intention to be admitted to the bar, and the potential impact of a conviction on his future career. The court found that the circumstances of the offence warranted a fine, but the appellant's financial position and other factors justified not recording a conviction.

Orders