Scarfo v Deputy Commissioner for Consumer Affairs - [2014] SASC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCARFO v DEPUTY COMMISSIONER FOR CONSUMER AFFAIRS
[2014] SASC 9
Judgment of The Honourable Justice Vanstone
29 January 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appellant pleaded guilty in the Magistrates Court to one count of interfering with the odometer of a second-hand vehicle - appellant altered odometer of a vehicle bought by him at auction and then sold it, thereby achieving a greater price for it - magistrate recorded a conviction, fined the appellant the sum of $3,500 and ordered the appellant pay compensation of $3,373 to the purchaser of the vehicle - appeal against penalty on the ground of manifest excess - whether magistrate gave full credit for early plea - whether starting point must have been too high.
Appeal dismissed - magistrate not obliged to stipulate precise reduction for plea - deterrence an important factor in imposing penalty for regulatory offences - penalty imposed within area of magistrate's discretion.
Second-Hand Vehicle Dealers Act 1995 (SA) s 34; Criminal Law (Sentencing) Act 1988 (SA) s 3(1), s 10B, referred to.
Piva v Brinkworth (1992) 59 SASR 92; Hemming v Neave & Neave (1989) 51 SASR 427, considered.

SCARFO v DEPUTY COMMISSIONER FOR CONSUMER AFFAIRS
[2014] SASC 9
Magistrates Appeal
Criminal

VANSTONE J: The appellant pleaded guilty in the Magistrates Court to one count of interfering with the odometer of a second-hand vehicle. Between 9 September 2011 and 14 October 2011 the appellant substantially lowered or acquiesced in the lowering of the reading on the odometer of a second-hand vehicle which he had purchased at auction about a month earlier. He then sold the car on the basis that the lower reading was accurate.
The maximum penalty for interfering with the odometer on a second-hand vehicle is a fine of $10,000: s 34 Second-Hand Vehicle Dealers Act 1995 (SA).
The magistrate recorded a conviction and fined the appellant the sum of $3,500. In addition, it was ordered that the appellant pay compensation of $3,373 to the purchaser, Metro Holden.
The appellant appeals against that penalty on the ground that it is manifestly excessive. For the following reasons I would dismiss the appeal.
Background
On 9 September 2011 the appellant purchased a Holden Statesman, registered number SAS 183 ACV for $18,000 at auction. The odometer reading was then about 125,091 kilometres. On about 17 October 2011 the appellant sold the vehicle for $20,000 to Metro Holden. He traded in the vehicle on a new Holden Commodore, which resulted in a payment to him by Metro Holden. At the time of the transaction the odometer reading on the Statesman was approximately 48,170 kilometres. The magistrate found that, because of the falsely low odometer reading, the appellant received about $2,000 more than he otherwise would have.
It appears that while the Statesman was in the possession of personnel at Metro Holden suspicions must have been raised as to the accuracy of the odometer. I surmise that this led to enquiries with another Holden dealer and it was ascertained that the reading was markedly incorrect. In due course the odometer was corrected and the vehicle was sold by Metro Holden for $16,627. Therefore Metro Holden made a loss of $3,373 on the Statesman. It was that sum which the appellant was ordered to pay to Metro Holden by way of compensation.
At the time of the offending the appellant was 27 years of age and had no prior convictions. In imposing penalty the magistrate noted the appellant’s prior good character. The magistrate indicated that he would give the defendant “considerable credit” for his early plea of guilty. He said: “I allow discount as prescribed by legislation for an early guilty plea”. Because the appellant pleaded guilty to the offence not more than four weeks after his first appearance in the court – and indeed he pleaded guilty on the occasion of his very first appearance – the magistrate was entitled to reduce the sentence by up to 40 per cent: s 10B(2)(a) Criminal Law (Sentencing) Act 1988. “Sentence” is defined widely and includes the imposition of a penalty: s 3(1) Sentencing Act. The magistrate described the offence as “blatantly dishonest, sophisticated and premeditated”. He emphasised that others should be deterred from “cynically exploiting the community for personal gain”.
Upon the appeal it was accepted that the compensation order was appropriate and that it was open to the magistrate to record a conviction. Counsel for the appellant, Ms S David, submitted that in fixing the amount of the fine, the magistrate gave insufficient weight to the appellant’s guilty plea, his offer to pay compensation and to his prior good record.
Counsel argued that there was no reason why the magistrate should not have allowed the maximum discount. The plea was made at the first available opportunity and at the same time the appellant indicated his preparedness to pay compensation. Indeed, the matter was adjourned so that the amount of compensation could be quantified. Counsel put that if the starting point for the fine had been reduced by the maximum figure of 40 per cent then it must have been $5,800, which she put was too high in all the circumstances. If a reduction of 30 per cent was employed then the starting point must have been $5,000. Again, counsel argued that this would constitute an inappropriately high starting point in all the circumstances of the matter.
Analysis
Although it would have been helpful had the magistrate stipulated the starting point he took, I do not consider that there was any obligation to do so. Magistrates deal with numbers of regulatory offences and only brief reasons are needed to explain the penalty arrived at. While the appellant was entitled to expect that, having pleaded guilty at the earliest possible opportunity, he would receive a discount approaching the maximum of 40 per cent, there was no entitlement as such. Here, the appellant had not admitted the offence when interviewed by the police. That was one of many considerations: s 10B(4) Sentencing Act.
The plea of guilty and the offer of compensation, though earning credit, were referable to an acceptance of the inevitable, as much as to a demonstration of contrition. Having said that, I do not see why in this case the appellant should have received any less than a 30 per cent reduction. On that analysis the question becomes whether a starting point of $5,000 was outside the area of discretion reserved to the magistrate.
The magistrate pointed out – rightly in my view – that offences such as this are difficult to detect. Moreover it is generally accepted that general and personal deterrence are to be afforded especial weight where penalty for regulatory offences is under consideration: Piva v Brinkworth (1992) 59 SASR 92 at 96 per Duggan J; Hemming v Neave & Neave (1989) 51 SASR 427 at 429 per Bollen J.
While a starting point of about half of the maximum penalty might seem somewhat high for a man otherwise of good character, I do not consider that it can be said that the penalty imposed was outside the magistrate’s discretion. The magistrate took a dim view of the conduct and I think he was entitled to do so.
Conclusion
The appeal must be dismissed.