Abdulwahab v Registrar of Motor Vehicle Traders

[2019] NZHC 3100

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-0387

[2019] NZHC 3100

BETWEEN

NABIL ABDULWAHAB

Appellant

AND

REGISTRAR OF MOTOR VEHICLE TRADERS

Respondent

Date of hearing:	26 November 2019
Appearances:	N C King for the appellant HAM Watts for the respondent
Date of judgment:	26 November 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors/Counsel:

Noel King Barrister, Manukau

Kayes Fletcher Walker Limited, Auckland

ABDULWAHAB v REGISTRAR OF MOTOR VEHICLE TRADERS [2019] NZHC 3100 [26 November 2019]

[1]                 Nabil Abdulwahab appeals the $4800 fine imposed by Judge J B Bergseng in the District Court at Manukau on 30 July 2019,1 following Mr Abdulwahab’s guilty plea to one charge of carrying on the business of motor vehicle trading without being registered,2 and exactly consistent with the Judge’s prior sentence indication.3

Background

[2]                 The Motor Vehicle Sales Act 2003 (the “Act”) prohibits trade in motor vehicles “unless the person is registered as a motor vehicle trader”.4 Relevantly here, a person is treated as trading in motor vehicles if they sell more than six motor vehicles within twelve consecutive months, unless they prove they “were not sold for the primary purpose of gain”.5 Those who “sell motor vehicles otherwise than in accordance with the provisions of the Act gain the obvious benefit of not being required to comply with the requirements of the Act”.6

[3]                 Mr Abdulwahab sold ten motor vehicles between 13 November 2016 and 12 November 2017. He sold three more vehicles in January, February and April 2018, after receiving (non-)compliance letters from the registrar earlier in each January and February 2018. He was not then a registered motor vehicle trader, but since has been registered, three months after which this proceeding was brought.

[4]                 Judge Bergseng did not stray from his sentence indication and no further submissions were made at sentencing (although the Judge observed on indication there was scope for further reduction on receipt of further submissions on background and ability to pay).7 Mr Abdulwahab’s counsel Noel King says he understood from that the submissions that had been made to this end had not carried weight with the Judge. The Judge began the sentence indication by discussing the purpose of the Act, which

1      New Zealand Transport Agency v Abdulwahab [2019] NZDC 17691. The prosecutor (and respondent, here) was the Registrar of Motor Vehicle Traders, as set out in this judgment’s entitulement.

2      Motor Vehicle Sales Act 2003, ss 95 and 118. Maximum penalty is a fine not exceeding $50,000.

3      New Zealand Transport Agency v Abdulwahab DC Manukau CRI-2018-092-009632, 30 July 2019.

4      Motor Vehicle Sales Act, s 10.

5      Section 8(1)(b). If someone holds themselves out as carrying on the business of motor vehicle trading or imports more than 3 vehicles within the specified period, they can also be treated as a trader (ss 8(1)(a) and (c)).

6      Collins v Registrar of Motor Vehicle Traders [2016] NZHC 2106 at [15].

7      New Zealand Transport Agency v Abdulwahab, above n 3, at [19].

is to promote and protect the interests of consumers in relation to motor vehicle sales.8 The obligations of registered motor vehicle traders were discussed in some depth, with the Judge noting most were based on consumer protection.

[5]                 Mr Abdulwahab’s personal circumstances also were considered. He is a Palestinian refugee who operates a small panel beating business. To supplement his income, he buys and  repairs  damaged  vehicles  to  on-sell.  The  Judge  accepted Mr Abdulwahab was not actively disregarding the law; rather, he initially was unaware of, and then slow to meet, his statutory obligations.

[6]After considering comparable cases, the Judge adopted a starting point of

$8000.9 The Judge declined to uplift for subsequent sales. Noting Mr Abdulwahab’s lack of relevant convictions, the Judge applied a 20 per cent discount, reducing the fine to $6400. The full 25 per cent discount was applied for Mr Abdulwahab’s guilty plea, reducing the fine further to the end fine of $4800.

Approach to appeals against sentence

[7]                 I must allow the appeal only if satisfied there is an error in the sentence, and a different sentence should be imposed.10 In any other case, I must dismiss the appeal.11 The approach previously taken by courts on sentencing appeals continues to apply,12 so the measure of error is the sentence be “manifestly excessive” – a principle “well- engrained” in this Court’s approach to sentence appeals.13 I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.14

8      Motor Vehicle Sales Act 2001, s 3.

9      Registrar of Motor Vehicles v Buchanan [2014] DCR 287; and Registrar of Motor Vehicles v Herewini [2016] NZDC 4065.

10     Criminal Procedure Act 2011, s 250(2).

11     Section 250(3).

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

13     At [33] and [35].

14     Ripia v R [2011] NZCA 101 at [15].

Issues on appeal

[8]                 Mr King says the fine imposed was excessive, given the particular circumstances of the offending. While no discrete error in the Judge’s decision is relied on, Mr King contends for a $4000 starting point, allocated as $1000 for each of the four cars sold above the permitted six vehicle threshold in the specified twelve months. With a 25 per cent discount for personal mitigating factors and a further 25 per cent discount for Mr Abdulwahab’s guilty plea, this would result in an end sentence of

$2250.

Discussion

[9]                 The Judge’s $8000 starting point is consistent with comparable cases.15 The profitability or otherwise of the offending is immaterial to establishing the starting point; the fine is to impose a penalty, not a licence fee. The Judge’s reference to offenders “obtaining the financial benefit of sales without any of the obligations of registration” is not to establish the fine’s upper bound. Rather, the Act’s objective is “to promote and protect the interests of consumers in relation to motor vehicle sales”;16 that is not met only by requiring disgorgement by those caught offending. The Judge’s starting point does not err.

[10]              Mr Abdulwahab initially may have been unaware of the Act’s complete requirements (although it appeared he knew enough to address the vehicles’ changes in registered ownership), but they were brought directly to his attention by the Registrar’s letters. The scheme of the Act presumes unregistered motor vehicle trading is harmful in its own right; no additional harm is required to be established. The 20 per cent discount for personal circumstances accommodated Mr Abdulwahab’s lack of wilful breach of the Act, and his subsequent registration. The quantum of that discount is not realistically contestable.

15  Registrar of Motor Vehicles v Buchanan,  above n 9 (defendant faced one charge of carrying on   the business of motor vehicle trading without being registered, having sold 10 vehicles without being registered; starting point of $8000 adopted); and Registrar of Motor Vehicles Traders v Herewini, above n 9 (defendant faced one charge of carrying on the business of motor vehicle trading without being registered, having sold 11 vehicles without being registered; starting point of $9000 adopted). Motor Vehicle Dealers Institute v Sykes [2018] NZDC 16437 also is comparable (the defendant sold 11 vehicles without being registered; a starting point of $8500 was adopted).

16 Motor Vehicle Sales Act 2003, s 3.

[11]              Aside from the 25 per cent discount for Mr Abdulwahab’s guilty plea, no further discounts were warranted. The Judge expressly allowed opportunity for further submissions on Mr Abdulwahab’s financial capacity to meet any fines imposed when he delivered his sentencing indication. No more then were made; no evidence now is sought to be adduced to suggest Mr Abdulwahab will be unable to pay his fine.

[12]              The Judge did not err in any respect; the end fine of $4800 is not manifestly excessive.

Result

[13]The appeal is dismissed.

—Jagose J