Manifestly inadequate - Section 8(1) Sentencing Act – discretion not to record conviction –Consumer Affairs and Fair Trading Act, Part 10 - Motor Vehicle Dealers

R v Allison (1987) 49 NTR 38; Cobiac v Liddy (1968) 119 CLR 257; The Queen v GJ [2005] NTCCA 20; The Queen v McInerney (1986) 42 SASR 111; R v Morton (2000) 11 NTLR 97; Toohey v Peach [2003] NTCA 17, applied

Glover v Zouroudis (1990) 54 SASR 200; Hemming v Lukin (1996) 67 SASR 248; Hemming v Neave (1989) 51 SASR 427; Piva v Brinkworth (1992) 59 SASR 92, Walker v Eves (1976) 13 SASR 249, considered

RG Fox and A Freiberg, Sentencing State and Federal Law in Victoria 2nd Ed, referred to

Section 129(1), s 141(6), s 157(1), s 160(1) and s 175 Consumer Affairs and Fair Trading Act; s 8(3) and s 8(1) Sentencing Act

REPRESENTATION:

Counsel:
Appellant: M Johnson
Respondent: P Elliott

Solicitors:
Appellant: Solicitor for the Northern Territory
Respondent: De Silva Hebron

Judgment category classification: B
Judgment ID Number: Sou0517
Number of pages: 20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Hales v Adams [2005] NTSC 86
No. JA 27/05 (20424414)

BETWEEN:

PETER HALES
Appellant

AND:

NEAL RICHARD ADAMS
Respondent

CORAM: SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 30 December 2005)

Introduction

[1] On 26 May 2005 the respondent was charged in a substituted complaint with five offences contrary to Pt 10 of the Consumer Affairs and Fair Trading Act (the Act). The charges related to the respondent’s conduct of a motor vehicle dealer business between January 2003 and January 2004. The charges were as follows:

1. Contrary to s 129(1) of the Act, between 8 January 2003 and January 2004 in the course of business as a motor vehicle dealer, the respondent completed 20 deals in which he either bought or sold motor vehicles otherwise than at the place of business specified in his motor vehicle dealer’s licence. The maximum penalty for this offence is a fine of $55,000.

2. Contrary to s 141(6) of the Act, between 15 September 2003 and 23 September 2003, the respondent made a false and/or misleading statement on the ‘Prescribed Annual Return by a Licensed Dealer who is a Natural Person’. The respondent declared that he was currently not trading. He knew the statement to be false and/or misleading. The maximum penalty for this offence is a fine of $11,000.

3. Contrary to s 157(1) of the Act, between 8 January 2003 and November 2003 the respondent failed to maintain a dealings register. The maximum penalty for this offence…

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 Hales v Adams

Details

AGLC: Hales v Adams [2005] NTSC 086
Case: [2005] NTSC 86
Decision Date: 30 December 2005

CaseChat Overview and Summary

In this case, the appellant, Peter Hales, is challenging the penalty imposed by the Court of Summary Jurisdiction on Neal Richard Adams, the respondent, for multiple breaches of the Consumer Affairs and Fair Trading Act. The respondent pleaded guilty to five charges relating to his conduct as a motor vehicle dealer. The Court of Summary Jurisdiction fined the respondent $1,500 but did not proceed to convict him. The Crown appealed against the penalty imposed by the Court of Summary Jurisdiction, arguing that the Court of Summary Jurisdiction had wrongly exercised its discretion under s 8(1) of the Sentencing Act in not recording convictions for any of the offences, and that the penalty imposed on the respondent was manifestly inadequate.

The court found that the Crown's contentions were correct and that the appeal should be allowed. The court held that the Court of Summary Jurisdiction had failed to have proper regard to all of the circumstances of the offending, particularly the objective seriousness of the offending, the nature of the legislation which had been breached, and the maximum penalties specified by Parliament. The court further held that the sentence imposed by the Court of Summary Jurisdiction was not proportionate to the respondent's offending and was manifestly inadequate.

The court set aside the decision of the Court of Summary Jurisdiction not to record convictions for each of the five counts charged against the respondent and convicted the respondent of each of the five counts charged in the substituted complaint. The court will hear the parties as to the costs of the appeal.

Orders