Commissioner for Fair Trading v Bassem Dodar AKA Kevin Elasaad

Supreme Court of NSW|2005-05-05|Before: Bell J, Simpson J, James J

CITATION : Commissioner for Fair Trading v Bassem Dodar AKA Kevin Elasaad [2005] NSWSC 414

HEARING DATE(S) : 24/2/05, 25/2/05,17/3/05, 28/4/05

DECISION : For the offence charged in count two of the statement of charge the offender is sentenced to a term of four months and two weeks imprisonment to be served by way of periodic detention. He is to report to the Officer in Charge of the Silverwater Periodic Detention Centre by 8:30 am on Thursday 12 May 2005 to commence serving that sentence; In respect of the sentences imposed for the offences charged in counts three, four, five, six and seven of the statement of charge in each case the offender is sentenced to a non-parole period of three months to commence at the expiration of the sentence imposed with respect to the offence charged in count one. The balance of the terms of these sentences is three months' and two weeks' imprisonment. Direct that each sentence is to be served by way of periodic detention. Direct that the offender is to be released on parole at the expiration of the non-parole period imposed with respect to each sentence.

Crimes (Sentencing Procedure) Act 1999 Fair Trading Act 1987 LEGISLATION CITED : Retail Leases Act 1994 Road Transport (Driver Licensing) Act 1998 Supreme Court Rules 1970

Commissioner for Fair Trading v Oliver [2004] NSWSC 722 Director-General of Fair Trading v O'Keefe [2002] NSWSC 398 Director-General of Fair Trading v Yang [2002] NSWSC 754 CASES CITED : Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969; 53 NSWLR 527 Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 Wood v Staunton (No. 5) (1996) 86 A Crim R 183

Commissioner for Fair Trading (Plaintiff) PARTIES : Bassem Dodar AKA Kevin Elasaad (Defendant)

S.A. Beckett (Plaintiff) COUNSEL : G. Jauncey (Defendant)

D.I Catt (Plaintiff) SOLICITORS : M. Bellingham (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11643/03 Commissioner for Fair Trading v Bassem Dodar aka Kevin Elasaad

JUDGMENT 1 BELL J: By notice of motion filed on 22 April 2004 the Commissioner for Fair Trading (the Commissioner) applied for orders that Bassem Dodar, the defendant, be found guilty of contempt of this Court for failing to comply with orders made by judges of this Court. The statement of charge pursuant to Pt 55 r 7 of the Supreme Court Rules 1970 charged the offender with seven counts of contempt. The proceedings came before me on 23 August 2004. On that day the offender entered pleas of guilty to each of the counts contained in the statement of charge. 2 The offender was unrepresented on the day that he entered his pleas of guilty. As the result of one of his submissions, I stood the proceedings over to give him the opportunity to obtain legal advice. 3 The proceedings came before me on 24 February 2005. On that occasion the offender was represented by Mr Bellingham, solicitor. The offender sought leave to withdraw the plea of guilty entered to the first count in the statement of charge. That application was not opposed and leave was granted. Thereupon the Commissioner withdrew the first charge. The offender adhered to the pleas of guilty earlier entered with respect to counts two to seven in the statement of charge. The six offences to which the offender has pleaded guilty may be briefly described as follows (I will adopt the numbering as it appears in the statement of charge): "2. In that in breach of the order made by Simpson J on 15 July 2003, whereby the defendant whether by himself, his servants, agents or otherwise was restrained from placing or entering his name or business name in any listing, entry or directory for the purpose of or in connection with the conduct of any business relating to the repairing or servicing of any electronic or electrical goods, did by himself, his servants or agents on 28 July 2003, apply to register a business name All in 1 Electronics thereby causing his name and that of the business name to be entered in the Business Names Register. 3. In breach of the order made by James J on 4 August 2003, whereby the defendant whether by himself, his servants, agents or otherwise was restrained from conducting or carrying a on any business relating to the repair or servicing of any electronic or electrical goods did either by himself, his servants or agent on or after 4 August 2003, commence conducting or carrying on a business of repair or servicing of electronic or electrical goods from the premises at 47 Andover Street, Carlton in the State of New South Wales. 4. In breach of the order made by Greg James J on 4 August 2003, whereby the defendant whether by himself, his servants, agents or otherwise was restrained from displaying any signs, logos or telephone numbers or otherwise holding himself out in any manner, directly or indirectly, that he conducts or carries on any business relating to the repair or servicing of any electronic or electrical goods did either by himself or his servants or agents on or after 4 August 2003, display signage, including a telephone number on the window of a shop at 47 Andover Street, Carlton in the State of New South Wales advertising the conduct or carry on of a business relating to the repair or servicing of electronic or electrical goods. 5. In breach of the order made by Greg James J on 4 August 2003, whereby the defendant by himself, his servants, agents or otherwise was restrained until further order from conducting or carrying on any business relating to the repair or servicing of any electronic or electrical goods, the defendant did between about 18 and 25 September 2003 conduct business with a Josef Kornelius Shwanzer relating to the repair of Mr Schwanzer's computer. 6. In breach of the order made by Greg James J on 4 August 2003, whereby the defendant by himself, his servants, agents or otherwise was restrained until further order from conducting or carrying on any business relating to the repair or servicing of any electronic or electrical goods, the defendant did between about 5 November 2003 and 2 December 2003 conduct business with Douglas Begg relating to the repair of Mr Begg's computer. 7. In breach of the order made by Greg James J on 4 August 2003, where by the defendant whether by himself, his servants, agents or otherwise was restrained from placing or entering his name or business names in any listing, entry or directory for the purpose of or in connection with the conduct of any business relating to the repairing or servicing of any electronic or electrical goods, the defendant did on 22 December 2003 apply to register a business name A.A.A. Complete Electronics thereby causing his name and that of the business name to be entered in the Business Names Register." 4 An agreed statement of facts upon which I am to sentence the offender is in evidence, Exhibit A. This discloses that in the period 1997 to August 2003 the Commissioner received a number of complaints from persons claiming that electrical goods had been inadequately repaired or not returned by the offender. On 2 July 2003 the Commissioner filed a summons and notice of motion seeking orders restraining the offender (and five other persons) from certain activities involved in carrying on the repair or servicing of electronic and/or electrical goods. 5 On 7 July 2003 Simpson J made orders restraining the offender (and others) from inter alia conducting or carrying on any business relating to the repair or servicing of any electrical or electronic goods. The offender was also restrained from advertising, using any material or displaying any signs, logos or telephone numbers or holding himself out as carrying on any business relating to electronic or electrical repairs or servicing. Simpson J also made orders restraining the offender from entering his name(s) or any business name(s) in any listing, entry or directory in connection with any business relating to the repair or servicing of electronic or electrical goods. 6 The offender was in court on 7 July 2003 when Simpson J made these orders. 7 The offender was present in court and was represented by a solicitor on 15 July 2003 when Simpson J continued the orders, to which I have referred, until further order. 8 On 24 July 2003 the offender, using the admitted alias of Kevin Elasaad, in arranging for the lease of premises at 47 Andover Street, Carlton, New South Wales, (the Andover Street premises) asserted in a disclosure statement under the Retail Leases Act 1994, that the permitted use of the shop was "electronic repairs". 9 On 28 July 2003 the offender, again using the name Kevin Elasaad, completed an application for registration of a business name for All in 1 Electronics. The nature of the business was described as including electronic repairs. On that date as the result of the application a Business Name Extract was created for All in 1 Electronics on the Business Names Register maintained by the Office of Fair Trading. The offender's admitted alias of Kevin Elasaad was entered on the Business Names Register. 10 On 1 August 2003 the offender entered into a nine-month lease of the Andover Street premises. He agreed to a term of the lease being, "that the premises shall be used only as electronic repair shop". 11 On 4 August 2003 the offender was present in court and represented by counsel when Greg James J continued the orders made by Simpson J by consent until further order. 12 On or about 4 August 2003 the offender-commenced business at the Andover Street premises involving the repair and servicing of electrical goods. The business operated at these premises for a period of four to six weeks. 13 From on or about 4 August 2003 until December 2003 the offender displayed large signs in the window of the Andover Street premises, advertising All in 1 Electronic Repairs, and electrical repairs to many forms of electrical goods. He also advertised two telephone numbers being, 95530011 and 0419 033326. 14 Between 18 and 25 September 2003 the offender, representing himself as All in 1 Electronics purported to carry out repairs on a computer owned by Josef Kornelius Schwanzer. Mr Schwanzer paid $445.00 for these repairs. The computer was returned incompletely repaired. 15 Between 5 November and 2 December 2003 the offender representing himself as All in 1 Electronics purported to carry out repairs on the computer of Douglas Begg. Mr Begg paid $389.00 for these repairs. The computer was returned incompletely repaired. 16 On 22 December 2003 the offender, using the name Kevin Elasaad, completed an application for registration of a business name for AAA Complete Electronics. On that day a Business Name Extract was created for AAA Complete Electronics on the Business Names Register maintained by the Office of Fair Trading. The offender's admitted alias of Kevin Elasaad was entered on the Business Names Register. 17 The offender was born on the 21 October 1978. The offences occurred when he was aged twenty-four and twenty-five years. 18 The offender has one conviction for an offence shortly described as obtaining/renewing a license by false statement. The offence is provided by s 22(1)(A) of the Road Transport (Driver Licensing) Act 1998. The offender was sentenced on 4 December 2003 by the Local Court at Sutherland to a fine of $300 in respect of his conviction for this offence.

19 The offender gave evidence at the sentence hearing on 24 February 2005. It is to be noted that on that day the offender also entered a plea of guilty to a further charge of contempt of court relating to an alleged failure to comply with certain orders made by Dunford J on 25 May 2004 (the further charge). During the course of his evidence I raised a question concerning the basis upon which the plea of guilty to this further charge of contempt had been entered. The proceedings were stood over to the following day on which occasion the offender applied for leave to withdraw the plea of guilty to the further charge. The proceedings were stood over to 17 March 2005. On that occasion the Commissioner did not oppose the grant of leave to the offender to withdraw his plea of guilty to the further charge. The motion seeking to have the offender convicted of the further charge was withdrawn. I refer to this history in order to record that I pay no regard to the balance of the paragraphs in statement of facts (exhibit A) that refer to the orders made by Dunford J. To the extent that evidence was given by the offender touching on the orders made by Dunford J and the offender's understanding of them, I pay no regard to it. 20 A report prepared by Dr John Roberts, a psychiatrist, was tendered on the offender's behalf together with the report of a clinical psychologist, Mr Moustapha. I have also had the benefit of a pre-sentence report prepared by William Grech of the Hurstville District Office dated 28 April 2005. 21 In addition to his oral evidence the offender relied upon an affidavit sworn by him on 5 May 2004. 22 The offender gave evidence that he lives with his parents in Bexley North. He is unemployed. He migrated to Australia with his parents when he was a child. He was born in Lebanon. He was educated at the Kingsgrove North High School. He was expelled from school at about the age of fifteen. He said that the difficulties that he encountered at this time are as set out in Dr Roberts' report. 23 The offender said that after leaving school he decided to embark on a career in the electronics industry. He became aware that a four-year course in electronics was offered at the TAFE. He enrolled in that course and completed two weeks of it. His reasons for leaving the course were not entirely clear, but it appeared that he came to the view that he had enrolled in the wrong course. Thereafter he did not undergo any formal training in electronics or any electrical or other trade. He worked in an electronics shop for eighteen months. During this time he watched the technician and picked up some knowledge of electronics. He then opened his own business. 24 The offender said that he was involved in a relationship and is the father of two children. The eldest, a boy, is aged four years'. He also has a daughter aged one year. At the time of giving evidence the offender said that he was solely responsible for the care of his son who was living in the family home with him. He was in receipt of a single parent pension. He was also in regular contact with his daughter who lives with her mother. 25 The offender described the proceedings before Simpson J on 7 July 2003 as being "complicated" (T 10.32). His attention was directed to the transcript of the proceedings, in which her Honour pronounced her orders and asked, "do you understand what that means?". The offender responded, "yes, yes, your Honour". He told me that he had had not understood the orders but that he had not wished to cause a fuss in court. In particular he said he did not know what "interim" meant but that he had felt it would be rude to interrupt the proceedings. I reject the offender's evidence in these respects. I am satisfied beyond reasonable doubt that the offender understood the effect of the orders made by Simpson J on 7 July 2003. 26 Prior to July 2003 the offender had been operating under the business names, Better Electronic Repairs and AAA Complete Electronic Repairs. On 28 July he registered the business name, All in 1 Electronics. This was the first time he sought to operate a business under that name. He denied that his purpose in registering the name All in 1 Electronics was to distance himself from the business names that he had previously operated under. I did not accept his evidence.

27 The offender was cross-examined concerning his application for registration of a business name, AAA Complete Electronics. I do not propose to refer to his evidence in detail. I considered it to be wholly unsatisfactory. 28 Dr Roberts examined the offender on 24 October 2003 for the purposes of preparing a report. A number of the assertions made by the offender to Dr Roberts in the course of the assessment were not accepted by the doctor. In the mental status examination Dr Roberts reported that the offender presented as a person who acted normally, who had peculiar memory lapses in regard to isolated matters of fact, and that it had been difficult to obtain a coherent history from him. Dr Roberts observed by way of example that at one point the offender referred to his inability to read or write and elsewhere during the interview to his difficulty in reading more than one page of text. In Dr Roberts' opinion the offender's description of his work tasks suggested that he possessed literacy and numeracy skills at least to a limited degree. 29 Dr Roberts reported that the offender appeared to dismiss these matters, described as his "problems with the Commissioner", as being evidence of unfair treatment since there were only eighty complaints against him. Dr Roberts went on to report: "The differential diagnosis one would have to consider in regard to Mr Dodar is a differential diagnosis between a person with a degree of developmental delay or a personality disorder, associated with the presence of a Ganser syndrome namely to giving of answers of an approximate nature or alternatively a denial in relation to facts that would be obviously known. I understand that Mr Dodar is due to attend court in the near future. It may well be appropriate for the matter to be postponed pending psychometrics, which would illustrate Mr Dodar's IQ and would permit the administration of a variety of tests which would highlight if fabrication is occurring. In terms of his current presentation, I consider that Mr Dodar would make a poor witness in regard to matters of fact, while his answers may be symptomatic of a degree of developmental delay, on grounds of probability the answers that he gives are more likely to be a feeble attempt at fabrication and in my view a frank discussion with your client would be an appropriate course of action to take, namely as to whether one would bother to go to the expense of an additional possibly twelve to eighteen hundred dollars to undergo psychometric tests if he is simply attempting to mislead." 30 The overall impression recorded by Dr Roberts was that it was probable that the offender was suffering a personality disorder of the antisocial type. No evidence of the results of psychometric tests or otherwise providing credible support for the alternative diagnosis of developmental delay was led on the offender's behalf. 31 The report of Mr Moustapha, clinical psychologist, dated 22 April 2005, contains an opinion that the offender meets the diagnostic criteria for post-traumatic stress disorder contained in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). As I read Mr Moustapha's report, the event giving rise to this diagnosis was the history of a motor vehicle accident in 1998 or 1999. The history is that the offender suffered migraine headaches after the accident and other sequelae included sensitivity when brushing his hair. Mr Moustapha recorded that resulting depression had led to the offender losing his business. The offender also reported problems with sleep and concentration. It is not necessary to consider whether Mr Moustapha's qualifications allow him to express the opinions contained in his report. It is apparent that he relies for them on the history given by the offender. In light of the contents of Dr Roberts' report I am not disposed to accept the diagnosis of a psychiatric condition made by Mr Moustapha which it appears is based substantially on the history given by the offender.

32 I note the contents of Mr Grech's report and that the offender's father reported that the offender's education had been disrupted as the result of ongoing medical problems. The father described the offender as being a gullible and simple person. I do not accept the latter as evidencing developmental delay. 33 It is to be noted that the offender maintained in his interview with the Probation Officer that he had understood the Court order prohibiting him from working in the electrical repair business to be a temporary order. He claimed that he had approached the Department of Fair Trading eight days after the Order was made asking if he could register a business. He had been allowed to do so. He told the Probation Officer that he understood this to mean that he could again work in the electrical repair industry. The offender gave a similar account in evidence before me. I did not accept it. I do not accept that he acted on the advice of an officer of the Department of Fair Trading in the terms he conveyed to the Probation Officer. I do not find the offender to be remorseful for his conduct.

34 I approach the sentencing of the offender upon the basis that his contempt of the orders of Simpson J made on 7 July was deliberate. Further offences were committed after the offender consented to the continuation of the orders and when he was represented by counsel. I am satisfied beyond reasonable doubt that the offender embarked on a course of deliberate defiance of the orders of the Court. 35 The Commissioner obtained orders in the nature of injunctions under s 65 of the Fair Trading Act 1987 for the benefit of consumers. By his wilful conduct the offender frustrated the effect of those orders. 36 In Registrar of the Court of Appeal v Maniam (No. 2) (1992) 26 NSWLR 309 Kirby P at 314 observed: "A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and announcing the conduct concerned in an appropriately emphatic way." 37 In dealing with the offender for his contempt I am to apply the provisions of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act): Principal Registrar of the Supreme Court of NSW v Jando [2001] NSWSC 969; 53 NSWLR 527. 38 I have regard to the purposes of sentencing as set out in s 3A of the Act. Pursuant to s 5(1) I must not sentence the offender to imprisonment unless I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

39 The Commissioner referred me to a number of cases, including Jando; Director-General of Fair Trading v O'Keefe [2002] NSWSC 398; Director-General of Fair Trading v Yang [2002] NSWSC 754 and Commissioner for Fair Trading v Oliver [2004] NSWSC 722. I was assisted by reference to these cases, however, each case must be considered by reference to its own facts with respect to the circumstances of the offence and of the offender. 40 I have regard to the statement of the matters to be taken into account in sentencing for contempt which were enunciated by Dunford J in Wood v Staunton (No. 5) (1996) 86 A Crim R 183 at 185 and relied upon by Studdert J in Jando. Certain of those considerations are of particular relevance in the context of a contempt involving interference with the administration of criminal justice. Others are of general application and include: (i) The seriousness of the contempt proved; (ii) whether the contemnor was aware of the consequences to himself of what he did; (iii) the reason for the contempt; (iv) whether there has been any apology or public expression of contrition; (v) general and personal deterrence; (vi) denunciation of the contempt; (vii) the character and antecedents of the contemnor. 41 The above considerations are now to be viewed in the context of the provisions of s 21A of the Sentencing Procedure Act which obliges the court to take into account both the aggravating factors set out in subs (2) and the mitigating factors set out in subs (3) that are relevant and known to the court. It is necessary to have regard to any other objective or subjective factor that affects the relative seriousness of the offence. These contempts are serious instances of offences involving the defiance of orders made for the protection of consumers. I accept the submission made on the offender's behalf that the objective seriousness of his conduct may be somewhat less than that involved in O'Keefe. I am also mindful that these are not offences involving inference with the administration of criminal justice. Nonetheless they remain serious offences and I am satisfied, having considered alternative dispositions, that no sentence other than imprisonment is appropriate in respect of any of them. Considerations of personal as well as general deterrence are relevant in this case. 42 None of the aggravating factors set out in s 21A(2) are of application. I now turn to the mitigating factors set out in subs (3). The offences were not part of a planned or organised criminal activity and the offender does not have any significant record of previous convictions. I am not satisfied on the balance of probabilities of either of the considerations set out in subparagraphs (g) and (h). The offender pleaded guilty to each of these offences at the first opportunity. I propose to discount the sentences that I would have otherwise imposed by twenty-five percent in recognition of this factor.

43 For the offence charged in count two of the statement of charge the offender will be sentenced to a term of four months and two weeks' imprisonment. No question of the specification of a non-parole period for a sentence of this length arises. It is necessary to record my reasons for imposing a sentence of imprisonment of six months or less: s 5(2) of the Sentencing Procedure Act. I considered that nothing other than a sentence of imprisonment was an appropriate reflection of the objective seriousness of the offence and the need for denunciation of offences of this character. However, given that the offender does not have a significant record of prior convictions and the other subjective considerations I did not consider a sentence of more than six months imprisonment (absent the discount for the plea) to be called for. The considerations to which s 5(2)(b) of the Sentencing Procedure Act are directed are not appropriate to this offender or to this offence. I am of the opinion that this is an appropriate case in which to direct that the sentence be served by way of periodic detention. Pursuant to s 6 of the Sentencing Procedure Act I shall so direct.

44 For each of the offences charged in counts three, four, five, six and seven of the statement of charge I propose to sentence the offender to a non-parole period of three months to commence at the expiration of the sentence imposed for the offence charged in count two. The balance of the terms of each of the sentences will be three months' and two weeks' imprisonment. This is a period that is more than one third of the non-parole period in each case. I have taken into account that the sentences for these offences are to be accumulated on the sentence imposed on the offence charged in count two. This is a special circumstance that makes it appropriate to depart from the statutory proportion provided by s 44 (2) of the Sentencing Procedure Act. These sentences will also be subject to a direction that they be served by way of periodic detention. 45 The effective sentence to which the offender will be subject is one of eleven months' imprisonment with a non-parole period of seven months and two weeks.

Bassem Dodar for the offence charged in count two of the statement of charge you are sentenced to a term of four months and two weeks imprisonment to be served by way of periodic detention. You are to report to the Officer in Charge of the Silverwater Periodic Detention Centre by 8:30 am on Thursday 12 May 2005 to commence serving that sentence.

In respect of the sentences imposed for the offences charged in counts three, four, five, six and seven of the statement of charge in each case you are sentenced to a non-parole period of three months to commence at the expiration of the sentence imposed with respect to the offence charged in count one. The balance of the terms of these sentences is three months' and two weeks' imprisonment. I direct that each sentence is to be served by way of periodic detention. I direct that you are to be released on parole at the expiration of the non-parole period imposed with respect to each sentence.

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