Parkinson v Prout
[2003] WASCA 320
•11 DECEMBER 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PARKINSON -v- PROUT [2003] WASCA 320
CORAM: HASLUCK J
HEARD: 11 DECEMBER 2003
DELIVERED : 11 DECEMBER 2003
FILE NO/S: SJA 1094 of 2003
MATTER :Justices Act 1902
BETWEEN: ROBERT JAMES PARKINSON
Appellant
AND
CHAD ANTHONY PROUT
Respondent
Catchwords:
Criminal law - Justices Act - Sentencing - Sentencing in response to endorsed plea of guilty - Offence of dealing in motor vehicles while not being licensed - Appellant sentenced in his absence - Whether sufficient weight given to mitigating factors - Circumstances in which daily penalty can be imposed - Sentence imposing substantial fine with daily penalty in respect of entire period specified in the complaint - Fine held to be excessive - Sentence quashed and matter remitted to learned Magistrate
Legislation:
Interpretation Act 1994, s 71(2), s 71(4)
Justices Act 1902, s 43, s 184, s 196, s 199
Motor Vehicle Dealers (Amendment) Act 2002, s 5, s 26, s 30(1), s 31
Sentencing Act 1995, s 6(1), s 8(2), s 9(7),s 14, s 15, s 16(1), s 53, Pt III
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr S I Gallacher
Respondent: Mr S M Simpson
Solicitors:
Appellant: Dwyer Durack
Respondent: Department of Consumer & Employment Protection
Case(s) referred to in judgment(s):
Danielle v Shire of Swan, unreported; SCt of WA; Library No 960513; 13 September 1996
Garrett v Nicholson (1999) 21 WAR 226
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
R v Tait (1979) 46 FLR 386
Radebe v The Queen (2001) 162 FLR 313
Rowlands v Capehorn [2001] WASCA 66
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
White v Taylor [1999] WASCA 104
Case(s) also cited:
Bates v Wheatley [2000] WASCA 38
Danielle v Shire of Swan, unreported; SCt of WA; Library No 960513; 13 September 1996
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
Jag Demolition Pty Ltd v Graham David Partridge [2002] WASCA 272
Kwa v City of Stirling, unreported; SCt of WA; Library No 990043; 11 February 1999
R v Heferen 106 A Crim R 89
R v Rostom [1996] 2 VR 97
Tagliaferri v De Villiers, unreported; SCt of WA; Library No 9950493; 15 September 1995
HASLUCK J:
Introduction
This is an appeal from the Court of Petty Sessions at Perth pursuant to provisions of the Justices Act1902. The appellant, Robert James Parkinson, was charged by summons pursuant to complaint No PE 36373/03 in the Perth Court of Petty Sessions. The complaint alleged that between 31 August 2002 and 16 July 2003 the appellant engaged in unlicensed dealing contrary to s 30(1) of the Motor Vehicle Dealers Act 1973.
I note in passing that as at 31 August 2002, being the first day of the period nominated in the complaint, s 30(1) of the Motor Vehicle Dealers Act provided that a person who is not the holder of a valid dealer's licence and who carries on or acts in the business of a dealer commits an offence unless he falls within certain special categories, such as, acting in the business of a dealer only in the capacity of a financier or in the capacity of an auctioneer. The penalty for infringement was said to be $3,000 and in addition a further penalty of $100 a day for each day on which the offence continues.
It seems that s 30(1) of the Act was amended by Act No 4 of 2002, being the Motor Vehicle Dealers (Amendment) Act 2002 which came into force on 1 September 2002. As a consequence of the amendment s 30(1) of the Act provided thereafter that a person was not to engage in unlicensed dealing. By s 5 a dealer means a person who carries on any class of buying or selling vehicles. By s 5A the classes of business include the buying of vehicles for wrecking. The penalty was said to be $50,000 and a daily penalty of $1,000.
The matter came before the Stipendiary Magistrate at the Perth Court of Petty Sessions on 5 August 2003 pursuant to an endorsed plea of guilty on the summons. The appellant did not attend the Court or provide a plea in mitigation to the Court.
The hearing
At the hearing the learned Magistrate noted that there was an endorsed plea of guilty in relation to the matter and invited counsel for the complainant to state the material facts. In doing so, counsel said that the appellant was the sole proprietor of the registered business "Car Body Removals". Following the receipt of complaints in January 2002 concerning his alleged activities an investigation was undertaken which indicated that for some considerable time the appellant had been dealing in motor vehicles when he was not licensed. More particularly, during the period "post September 2002 to 18 February 2003" the appellant was said to have purchased 23 vehicles from Pickles Auctions. During the period 13 September 2002 to 13 March 2003 he purchased 20 wrecked motor vehicles from Fowles Auctions. He also placed 83 advertisements in the broadsheet Quokka in respect of 34 items of vehicles and parts. He was also said to have booked 11 advertisements in the Sunday Times in respect of another 4 items.
Counsel for the complainant went on to say that on 2 May 2003 the investigating officer telephoned the appellant and advised him of allegations that he was an unlicensed motor vehicle dealer. It was alleged that during the telephone conversation the appellant said words to the effect that he had applied for or that he intended to apply for a licence. Records of the Department of Consumer and Employment Protection showed that no application for licence had been made to that point. It was put to him that he was buying vehicles for the purpose of dismantling and selling off the parts in which respect he was required to first obtain a motor vehicle dealer's licence. The appellant claimed that it was only after his father had been interviewed on 20 February 2003 that he became aware that he needed to be licensed. The prosecutor pointed out that this supposed information did not apparently have any effect upon the volume of his advertising in the period after his father was interviewed. It was put to the Court that the appellant continued to carry out his activities of unlicensed motor vehicle dealing when it was abundantly clear to him that he was acting unlawfully. It was said that he was continuing to advertise.
The prosecutor concluded by saying that in all the circumstances a substantial penalty should be imposed having regard to the appellant's decision to flout the law. A substantial penalty was required to deter him from continuing his activities and to deter others. The prosecutor referred to the fact that the legislation had been amended on 1 September 2002 to increase the penalty, presumably to reflect the seriousness with which the Legislature viewed the offence and the substantial profits which could be gained from it. The prosecutor pressed for imposition of a daily penalty.
In the course of considering these submissions, the learned Magistrate observed that there was an aggravating factor in the circumstances of the case in that the appellant continued to breach the provisions of the Act knowing full well that he was doing so. She noted that there were no prior convictions. Without further discussion, she proceeded to impose a fine of $10,000 for the substantive offence and then a daily penalty of $150 for each of the days in the period of the complaint with costs of $300.
I pause here to observe that it is apparent from the transcript of the hearing that the learned Magistrate and the prosecutor did not calculate the amount of the daily penalty. However, in essence, it emerges that a global penalty of $58,000 was imposed comprised of a fine of $10,000 and a daily penalty of $150 per day from 31 August 2002 to 16 July 2003 being a period of 318 days. In other words, the total of the daily penalty at the rate of $150 per day amounted to $47,700.
Leave to appeal
The appellant obtained leave to appeal before Barker J on 16 September 2003. He also obtained leave to file an amended application for leave to appeal the whole of the decision of the learned Magistrate given on 5 August 2003 upon the seven grounds set out in the appeal document. I will turn to the specific grounds of appeal shortly. However, before doing so, it will be useful to look briefly at the legal principles and statutory provisions bearing upon a case of this kind.
Legal principles
I begin by noting that by s 184 of the Justices Act an appeal lies to the Supreme Court by leave. Section 196 provides that the Court shall determine the appeal on the material before the Court below. However, there is power to receive further evidence as the Court thinks fit, especially with a view to clarifying what plea in mitigation or version of events the appellant wished to put before the Court below in regard to a sentencing issue: Rowlands v Capehorn [2001] WASCA 66.
By s 199, the Court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for hearing. The Court is not required to set aside or quash if the facts or evidence in substance support the decision. If the Court considers that no substantial miscarriage has occurred, it may dismiss the appeal, notwithstanding that a point raised in the appeal has been decided in favour of the appellant.
It is well recognised that an appellate court may not substitute its own opinion for that of the sentencing judicial officer merely because it would have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made: Lowndes v The Queen (1999) 195 CLR 665.
Alternatively, it must be demonstrated that the end result is so inappropriate or excessive that there must have been an error in principle even though it cannot be precisely identified: House v The King (1936) 55 CLR 499; R v Tait (1979) 46 FLR 386.
Sentencing principles are referred to expressly in the Sentencing Act 1995. By s 6(1) a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is to be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence including the vulnerability of any victim, any aggravating factors and any mitigating factors. A sentence may be reduced because of any mitigating factors or any rule of law as to the totality of sentences.
I note in passing that by s 9(7) of the Sentencing Act, if the statutory penalty for an offence specifies a daily penalty that penalty may be imposed for each day during which the offence continues, in addition to any other penalty that may be imposed for the offence. It is material to observe in that regard that by s 71(4) of the Interpretation Act where there is a failure to do a certain thing constituting an offence and a person is convicted of an offence accordingly that person is guilty of a further offence in respect of each day after the day of the conviction during which the failure to do the thing continues.
Importantly, for present purposes, s 53 of the Sentencing Act deals with considerations when imposing a fine. If a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account the means of the offender and the extent to which payment of the fine will burden the offender. By s 53(2) a court may fine an offender even though it has been unable to find out about the matters just mentioned.
Part III of the Sentencing Act covers various matters preliminary to sentencing. Section 14 provides that a court is not to sentence an offender unless the offender is personally present in court. However, by s 14(2) a court may in the offender's absence impose a fine. By s 14(4) despite sub‑s (2) or any other law that does not require an offender to be present when a sentence is imposed, a court may require an offender to appear personally to be sentenced. A court may compel an offender to appear personally to be sentenced by issuing a summons or a warrant for the offender's arrest.
Section 15 provides that a court sentencing an offender may inform itself in any it thinks fit. By s 16(1) it may adjourn the sentencing of an offender to obtain information about the offence or for any other reason the court thinks proper.
I pause to observe that when all these provisions are considered in combination, they strongly suggest that, even in the case of a fine, a court is required to proceed with due deliberation and be slow to impose a sentence in the absence of the offender if there is a lack of information as to the circumstances giving rise to the offence or as to the antecedents of the offender. In White v Taylor [1999] WASCA 104 McKechnie J observed at par 9 that magistrates, despite their no doubt busy court list, must nevertheless keep some proportionality in relation to the offence and the penalty. He was conscious that there was less need for detailed reasons as to the imposition of a particular amount by way of fine. However, his Honour was clearly conscious of those decided cases which indicate that reasons must disclose adequately the intellectual process which has resulted in a particular determination: Garrett v Nicholson (1999) 21 WAR 226 at 248.
I note in passing that in the busy legal system an early plea of guilty is generally rewarded as an acknowledgement that such a plea has a beneficial effect in an overcrowded criminal justice system and usually reflects a degree of remorse or acceptance of responsibility: Radebe v The Queen(2001) 162 FLR 313. I note in passing that by s 8(2) of the Sentencing Act a plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, the greater the mitigation. The reasons of the learned Magistrate in the present case, such as they are, do not suggest that the plea of guilty in the present case was characterised as a mitigating factor. The reasons do not suggest that the learned Magistrate gave weight to any other mitigating factors or took steps to obtain further information before imposing a substantial fine either by way of an adjournment or by any other means.
Grounds of appeal
Let me now turn to the various grounds of appeal. I will deal with grounds 1 to 4 upon the basis that the learned Magistrate was at liberty to apply the penalty described in s 30(1) as she did. However, my views in that regard must be taken as subject to what I have to say later about the remaining grounds of appeal which raise more fundamental issues of law.
The first two grounds of appeal are that the learned Magistrate failed to consider the fact that the appellant pleaded guilty in order to save the Court time and costs in the application of the penalty and failed to take into account the appellant's capacity to pay the penalty imposed.
It follows from my review of the legal principles that the learned Magistrate apparently did fail to give any weight to these aspects of the matter. As I have indicated, the Court had the power to adjourn and require the attendance of the appellant before sentence was passed but that power was not exercised. Such an approach would have allowed the learned Magistrate to take into account the appellant's mitigatory circumstances and capacity to pay any penalty. To my mind, an error has been made in the exercise of the sentencing discretion in that the learned Magistrate failed to take account of these matters and failed to take steps to ensure that she was sufficiently informed in regard to such matters. This meant that the decision made was unduly influenced by extraneous matters such as the determination to impose a severe penalty as a deterrent without sufficient regard to the circumstances of the case.
I consider that the appeal should be allowed on these two grounds, the sentences imposed be quashed, and the matter referred back to the learned Magistrate for re-sentencing in accordance with these reasons. In that regard steps should be taken to secure the attendance of the appellant with a view to obtaining information bearing on the case.
The third ground of appeal is that the learned Magistrate erred in applying a fine and daily penalty that was manifestly excessive in proportion to the nature and seriousness of the offence admitted.
Counsel for the appellant submitted that the increase in penalties pursuant to the recent amendments to the Motor Vehicle Dealers Act was enacted to deter highly organised offenders dealing in second hand motor vehicles as bona fide used cars when at times they were passing off either stolen vehicles or vehicles with serious structural damage. The statement of material facts before the learned Magistrate in the present case did not suggest that the appellant was conducting an operation of that kind. The statement of facts indicated that he bought damaged cars that were then dismantled for the sale of their parts. In characterising the seriousness of the offence in the manner contemplated by s 6 of the Sentencing Act it was open to the learned Magistrate to hold that offences of this kind was not of the same order as the dealer who passes off either stolen or unroadworthy cars as bona fide second‑hand cars. In the event she failed to arrive at any clear conclusion as to the level of criminality involved in the offence. To my mind, the level of criminality reflected in the information before the Court was not of a high order. Further, there was no allegation that loss had been sustained by any person. When I draw these factors together I consider that the penalty was manifestly excessive.
As I have noted, it was put to the Court that the appellant continued to trade unlawfully even though he was informed in February 2003 that he was acting contrary to the law. However, the aggravating factors before the Court were not sufficient to demonstrate a level of criminality justifying a fine amounting in total to $58,000. It follows that, in my view, the penalty was manifestly excessive and the sentence must be quashed on this ground also.
The fourth ground of appeal is that the learned Magistrate erred in law by considering that the appellant's continued breaches of the provisions of the Act, while knowing he was in breach, amounted to a circumstance of aggravation and that the global penalty in consideration of this ought to have only taken into account the appellant's conduct from 2 May 2003, or in the alternatively from 20 February 2003.
It follows from my earlier observations that, in my view, this ground is made out also. The daily penalty imposed by the learned Magistrate was applied in respect of the entire period although the aggravating factors, such as they were, were not said to have taken place until 20 February 2003 at the earliest. I have already indicated that no proper weight was given to the mitigating factors or to the degree of seriousness. The imposition of a uniform daily penalty covering the entire period meant that the exercise of the discretion was flawed.
The fifth ground of appeal
The fifth ground of appeal is that the learned Magistrate erred in law in applying the penalties contained in s 26 of the Motor Vehicle Dealers Amendment Act 2002 in that the penalties in that section came into effect on 1 September 2002. As to this matter, I will accept the respondent's contention that the correct way to draft an offence of this nature is to specify two exclusive dates so that the offence is said to lie between them. I do not allow the appeal on this ground.
The sixth and seventh ground of appeal
The sixth and seventh grounds may be considered together.
The sixth ground of appeal is that the learned Magistrate erred in law by applying the daily penalty when it only applies to second or subsequent offences. The seventh ground of appeal is that the learned Magistrate erred in law by relying on a deficient complaint, and applied a daily penalty pursuant to s 30(1) of the Motor Vehicle Dealers Act from 31 August 2002 to 16 July 2003, thus transforming the plea of guilty to 318 separate offences instead of one offence.
I pause here to say that counsel for the appellant placed reliance upon s 9(7) of the Sentencing Act and s 71(2) of the Interpretation Act being provisions I referred to in earlier discussion. Those provisions indicate that where a daily penalty is specified the penalty may be imposed for each day the offence continues. The concept of continuance is to be determined by reference to s 71(2) of the Interpretation Act.
As to these grounds of appeal, I give weight to what was said about duplicity and the need for specificity in Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 439 and related cases such as Danielle v Shire of Swan, unreported; SCt of WA; Library No 960513; 13 September 1996. In my view, the complaint would be bad for duplicity and in failing to alert the appellant to the risk of being subject to a daily penalty unless it be read down and be taken as referring to a single offence in respect of ongoing conduct during the specified period. This view of the matter is consistent with s 9(7) of the Sentencing Act and s 71(2) of the Interpretation Act 1984 concerning continuing offences. Accordingly, I consider that the appeal must be allowed on these grounds also. The learned Magistrate erred in imposing the daily penalty. Her task was to determine the appropriate sentence in respect of the single offence the subject of the charge based upon conduct and events occurring within the nominated period.
Put shortly, the complaint in this matter, having regard to s 43 of the Justices Act and the decided cases, must be taken to have alleged one charge of unlicensed dealing. The endorsed plea of guilty had to be construed accordingly. There was therefore an error in the exercise of the sentencing discretion.
Summary
Let me sum up.
I have dealt with grounds 1 to 4 upon the basis that the learned Magistrate was at liberty to apply the penalty described in s 31 of the Motor Vehicle Dealers Act as she did, for this is how these grounds were presented in the appeal papers. However, as I indicated earlier, my views in regard to those grounds must be taken as subject to what I had to say later about the following grounds of appeal which raised more fundamental issues of law.
On the assumption that I am right as to these latter issues, with the result that the learned Magistrate was not at liberty to apply a daily penalty, then upon the matter being remitted back, the learned Magistrate will be required to determine only what is the appropriate sentence for the single offence of engaging in unlicensed dealing. In this situation, the views I have expressed in regard to grounds 1 and 4 will continue to be of relevance and should be brought to account. If I be wrong about grounds 6 and 7 it follows that, in any event, the appeal should succeed having regard to what I said earlier about grounds 1 to 4.
In summary, then, I consider that the penalty imposed by the learned Magistrate must be quashed for the reasons I have given to the intent that the matter will be remitted to the learned Magistrate for re‑sentencing in accordance with these reasons for judgment. I will hear from the parties as to whether any further orders or directions are required.
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