Criminal law - Appeal by prosecution from sentence - Fine of $3,000 for offence of unlicensed dealing contrary to s 30 of the Motor Vehicle Dealers Act 1973 (WA) - Whether or not the quantum of the fine was manifestly inadequate

Motor Vehicle Dealers Act 1973 (WA), s 30

Sentencing Act 1995 (WA), s 53

Appellant : Department of Consumer & Employment Protection

1 BLAXELL J: This is an appeal from the penalty imposed upon the respondent on 15 September 2006 following his conviction in the Perth Magistrates Court of an offence of unlicensed dealing contrary to s 30 of the Motor Vehicle Dealers Act 1973 (WA). The appellant prosecuted the proceedings against the respondent, who was found guilty following a trial. The Magistrate imposed a fine of $3,000, and the appellant has obtained leave to appeal against sentence on the following grounds:

"1. The learned Magistrate erred in law in discounting the defendant's sentence by virtue of the defendant spending 2 days in custody for failing to appear at pre-trial hearings in the Magistrates Court or alternatively erred in law in giving excessive weight to the fact that the defendant spent 2 days in custody for failing to appear at pre-trial hearings in the Magistrates Court.

1. The learned Magistrate erred in fact or erred in law or in both law and fact in imposing a sentence that was manifestly inadequate in the circumstances of the case having regard to:

(a) the seriousness of the offence, including but not limited to the number of vehicles and period of time involved in the defendant's unlicensed dealing in motor vehicles;

(b) the need to impose a sentence that serves as a general deterrent, including in light of the difficulty in detecting unlicensed dealing in motor vehicles;

(c) the defendant's lack of remorse for committing the offence; and

(d) the fact that the defendant profited financially from the unlawful conduct.

1. The learned Magistrate erred in fact or erred in law or in both law and fact in placing undue weight on the defendant's financial circumstances in imposing sentence."

2 The respondent was convicted of unlicensed dealing in motor vehicles between 31 August 2002 and 23 May 2003. The Magistrate found that during this approximate nine month period the respondent owned, acquired or disposed of a total of 20 different vehicles. Most of these vehicles were purchased unlicensed at vehicle auctions in a damaged or write-off condition, and 17 of them were subsequently licensed and sold for amounts significantly in excess of what had been paid for their purchase.

3 Prior to selling these vehicles the respondent spent time and money in restoring them to an operating and road worthy condition. In respect of three of the vehicles, the evidence established that the odometer readings at the time of sale were substantially below the readings at the time of purchase.

4 Throughout the period between September 2002 and April 2003 the respondent paid for numerous advertisements offering vehicles for sale in The Sunday Times and The West Australian, and also arranged numerous free advertisements in The Quokka, a publication which permitted private sales to be advertised free of charge. His Honour specifically found that the volume of such advertisements published by the respondent was "significant". On 18 September 2002 the respondent also published an advertisement in The West Australian which read:

"Mechanic part-time, suit semi retired, light work only, hours to suit. 0408958748"

5 The Magistrate rejected the respondent's evidence that his activities with the motor vehicles was a "hobby" and that the various vehicles were sold because they were unsuitable to tow his boat. In his Honour's view, the respondent's activities "which substantially included carrying out major mechanical and structural repairs to vehicles and then selling those vehicles were precisely the kind of activities which s 30 of the Motor Vehicle Dealers Act 1973 is aimed at".

6 The profits that the respondent realised from the sale of the various vehicles could not be described as huge. The vehicles were mostly fairly old and had years of manufacture ranging between 1986 and 1995. The registration records before the Court revealed that the amounts paid for the purchase of the 20 vehicles totalled $32,650, and that the proceeds from the 17 vehicles that were sold totalled $59,450. From the difference of $26,800 the respondent had had to meet the costs of bringing each of the 17 vehicles into a saleable condition, but the evidence did not establish what those costs might have been.

7 Prior to sentence, the Magistrate was informed by counsel for the respondent that the latter was subject to bankruptcy proceedings in the Federal Court in respect of a debt of $1.7 million owing to the Australian Taxation Office. The respondent also had minimal savings, and his only income was a TPI pension of approximately $250 per week which was insufficient to meet his rent and other expenses. Counsel also submitted that two days that the respondent had spent in custody prior to conviction should be taken into account with sentence.

8 In addition to the fine of $3,000 that was imposed the Magistrate ordered that the respondent pay the appellant's costs fixed at $8,891.66.

9 The Magistrate's fundamental obligation (pursuant to s 6 of the Sentencing Act 1995 (WA)) was to impose a sentence which was commensurate with the seriousness of the offence. The seriousness of the offence was to be determined by taking into account the statutory penalty for the offence, the circumstances of commission of the offence including the vulnerability of any victim(s), any aggravating factors, and any mitigating factors. Subject to this, s 53 of the Sentencing Act also required that:

"... 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 -

(a) the means of the offender; and

(b) the extent to which payment of the fine will burden the offender."

10 The statutory penalty provided by s 30 of the Motor Vehicle Dealers Act for an offence of unlicensed dealing in motor vehicles is a fine of $50,000 together with a daily penalty of $1,000. In the present instance, the circumstances of the offence included the facts that the respondent had purchased and sold a large number of vehicles and had made extensive use of advertising. Most of the vehicles had been purchased in a very poor condition, and the fact that the respondent had carried out repair work himself meant that there was a much greater risk to purchasers than there would be with unlicensed dealing in most second hand vehicles. Self evidently, any purchaser who had dealt with the respondent had little recourse and was in a very vulnerable position if the vehicle turned out to be defective.

11 A further aggravating factor was that unlicensed dealing in motor vehicles is an offence which is difficult to detect, and requires very considerable investigation and resources to prosecute. In those few cases where prosecution results in a successful conviction, there is a very clear need for a penalty that will act as a general deterrent.

12 The only mitigating factors in the present case were that the profits acquired by the respondent as a result of his unlawful dealing could not have been very large. Furthermore, the respondent's personal circumstances were such that he had a relatively limited ability to meet a substantial fine. Although it is true that the respondent had spent two days in custody, this had resulted from a breach of bail, and therefore was not a mitigating factor to be taken into account in arriving at the appropriate penalty.

13 It is clear from the transcript that when arriving at the fine of $3,000, the Magistrate chose as a starting point, a penalty "in the region of $5,000 or $6,000". This penalty was then adjusted to take account of the respondent's personal circumstances and also the costs order which was made.

14 The essential question to be answered in this appeal is whether or not the fine of $3,000 fell within the range of a sound discretion having regard to all of the factors that the Magistrate was required to take into account. As was stated by Malcolm CJ in Sgroi v The Queen (1989) 40 A Crim R 197, at 200 - 201:

"The purpose of a fine a primarily to punish the offender. Consequently, the amount of the fine must be such as will constitute an appropriate punishment having regard to the offender's capacity to pay. Thus, the amount and method of payment of the fine will need to take into account, as far as practical, the financial resources and income of the offender and the nature of the burden that its payment will impose ... The question whether the amount of a fine is within the range of a sound discretionary judgment is to be determined in the same manner as the same question when asked with respect to a sentence of imprisonment, save that in the case of a fine, considerations of the offender's financial means [or] capacity are relevant in determining the amount of a fine which will constitute a punishment proportionate to the gravity of the offence in the light of the circumstances under which it was committed, the antecedents of the offender, and where appropriate the objective of general deterrence."

15 In the present instance, a starting point of $5,000 or $6,000 was towards the low end of the range of appropriate penalties, and certainly would have been manifestly inadequate if it was only the circumstances of the offence that were to be taken into account. However, s 53 of the Sentencing Act specifically required the Magistrate to have regard to the respondent's means, and the extent to which he would be burdened by the payment of the fine.

16 Given the undisputed information provided to the Magistrate as to the respondent's very limited financial circumstances, as well as the requirement that he pay costs of $8,891.66, I consider that the ultimate decision to impose a fine of $3,000 fell within the range of a sound discretionary judgment. I am of this opinion notwithstanding that the Magistrate also took account of the two days that the respondent had spent in custody.

17 It follows from the above that the appeal must be dismissed.