Schomburgk v Petty No. Scgrg-97-1568 Judgment No. S6629

[1998] SASC 6629

SCHOMBURGK  v  PETTY

Full Court

Coram: Doyle CJ, Millhouse and Nyland JJ

Nyland J: (ex tempore)

This appeal is from a decision of a District Court judge sitting in the Administrative and Disciplinary Division of the Court.  The respondent was charged on complaint that between 15 March 1995 and 26 January 1996 he carried on business as a dealer without being licensed under the Second-hand Vehicle Dealers Act 1995or a corresponding previous enactment namely the Second-hand Motor Vehicles Act 1993 (the Act). 

The complaint alleged that between 15 March 1995 and 26 January 1996, the respondent advertised 13 motor vehicles for sale in the Trading Post and that he had ultimately sold all of those vehicles.  The respondent was not represented in the proceedings before the District Court.  The respondent did not dispute that he was not a licensed dealer, nor that he had sold 12 of the 13 cars referred to in the particulars of the charge.  The thrust of his argument was that the purchase and selling of the cars was his hobby, that he loved cars and loved fixing them up, that he always ran at a loss and that he also used the cars for a period of time.  As a result of those matters, the judge decided to proceed as if it were a plea of not guilty.  He then heard evidence from the respondent.

Section 50 of the Act provides that a person who has sold or offered or exposed for sale four or more second-hand vehicles during a period of 12 months will, in the absence of proof to the contrary, be presumed to have been a dealer during that period.  In this case, the presumption was not displaced by the evidence of the respondent.  The judge found that the respondent had carried on business as a dealer without being licensed and that the complaint gave proper cause for disciplinary action against him.  The judge then ordered that the respondent be reprimanded and imposed a fine of $100.

The appellant has appealed against the penalty on the grounds that the judge failed to take into account relevant sentencing principles, including the fact of deterrence and that in all of the circumstances the fine imposed was manifestly inadequate. 

The maximum fine which could have been imposed pursuant to s31(1)(b) of the Act was a fine of $8,000.  The judge in his reasons for finding that the respondent had carried on a business as a dealer accepted that the respondent had a genuine interest in cars and that he enjoyed driving different cars.  He accepted that over the years the respondent may have made a loss from the sale of motor vehicles.  He considered the scale of activity of the respondent would ordinarily lead to a view that the respondent was trading in a relatively small way.  Nevertheless, he pointed out that “It must be borne in mind that the act was intended not only to regulate the activities of large scale operators but also to ensure that the backyard dealer is licensed and complies with the provisions of the Act”.  This was an important aspect of the matter.  These are disciplinary proceedings designed to protect members of the public from “backyard yard dealers”.  The Act imposes specific obligations upon those persons who operate as dealers, including the obligation to repair faulty vehicles sold by them.  There must therefore be a strong element of deterrence with respect to penalties imposed for breaches of the Act.  The proper role of an appellate court in the case of a prosecution appeal is to enable the courts to establish and maintain adequate standards of punishment for crime to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience, see R v Osenkowski (1982) 30 SASR 212.

In his submissions before the judge, Mr Grant, who was also counsel for the appellant on the hearing of this appeal, accepted that the respondent did not make a profit from his enterprise.  He agreed that the matter had not come to the attention of authorities as a result of any complaint by any member of the public.  Counsel for the appellant accepted that the respondent was not aware that what he was doing would be in breach of the Second-hand Vehicle Dealers Act and this was therefore not a wilful disregard of the law.  These were all matters which the judge was entitled to take into account in taking a lenient view of the respondent’s conduct.  Nevertheless, I think the fine imposed was so low that it was inadequate to satisfy the deterrent aspect of sentencing.  In my opinion, therefore, the sentencing discretion miscarried. 

I would allow the appeal and in lieu of the fine imposed by the District Court judge I would impose a fine of $750.

Doyle CJ:

I agree with Nyland J.  I consider that in this case there has been an undisclosed error of law.  First of all, in my opinion, the sentence imposed does not and cannot reflect the required allowance for deterrence.  I also consider that the fine imposed fails to reflect the seriousness of the offence.

There are mitigating circumstances and Nyland J has referred to them.  Another matter that should be mentioned is that the defendant was willing to plead guilty, but the judge thought that a plea of not guilty should be entered so he could adequately consider the facts relating to the hobby aspect of the matter.  As well, there was no profit element in this case.  Overall, it can be said it was not a serious breach.

However, the Act is intended to provide certain protections to the public who deal with the dealer.  The public dealing with an unlicensed dealer would probably be unaware of those rights.  There is also greater risk of an unlicensed dealer being uninsured and of the public being unable to enforce rights against the dealer for that reason.  For those reasons unlicensed trading is a serious type of offence. 

I place on the record my own opinion that nevertheless, this particular instance is not a serious instance of an offence of that type.  Indeed, it could be said to be relatively minor, but in my opinion because of the importance of this provision in the Act it still calls for a significant penalty.  Therefore, I likewise agree that the appeal should be allowed and a fine of $750 substituted.

Millhouse J:  

The respondent's offence, it seems to me, was merely a technical one.  The maximum fine under the Act is $8,000.  The fine imposed was only $100 - in view of the maximum, disproportionally low.  That is the only reason why I agree the appeal should be allowed and the fine increased to $750. 

Doyle CJ:

The orders of court are follows:

1.     Appeal allowed.

2.     Set aside the sentence imposed by the District Court.

3.Substitute for that sentence a fine of $750 and allow six months for payment of that amount from today's date.