NZLII Home | Databases | WorldLII | Search | Feedback

High Court of New Zealand Decisions

You are here:  NZLII >> Databases >> High Court of New Zealand Decisions >> 2016 >> [2016] NZHC 2106

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Collins v Registrar of Motor Vehicle Traders [2016] NZHC 2106 (6 September 2016)

Last Updated: 26 September 2016


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY



CRI-2016-404-000172 [2016] NZHC 2106

BETWEEN
BRETT ERIC COLLINS
Appellant
AND
REGISTRAR OF MOTOR VEHICLE TRADERS
Respondent


Hearing:
5 September 2016
Appearances:
No appearance by Appellant
J Blythe for Respondent
Judgment:
6 September 2016




JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 6 September 2016 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.


Registrar/Deputy Registrar

Date...............

























COLLINS v REGISTRAR OF MOTOR VEHICLE TRADERS [2016] NZHC 2106 [6 September 2016]

[1] Mr Collins is a motor vehicle trader in all but name. He habitually sells motor vehicles to members of the public.

[2] Under the Motor Vehicle Sales Act 2003 (the Act) a person must not carry on the business of motor vehicle trading unless he or she is registered under the Act.1

For the purposes of the Act, a person is treated as carrying on business of motor vehicle trading if he or she sells more than six motor vehicles within any twelve month period.2 It is an offence for a person to participate in the business of motor vehicle trading if he or she is banned from being registered under the Act.3

[3] Between 2001 and 2014, Mr Collins was convicted on five occasions of selling motor vehicles when he was not registered as a motor vehicle trader under the MVSA. As a result of the last of these convictions, Mr Collins was banned from participating in the business of motor vehicle trading until 26 June 2019.

[4] On 16 March 2016, Judge Collins found Mr Collins guilty of selling eight further vehicles between 1 September 2014 and 31 August 2015 whilst he was banned from participating in the business of motor vehicle trading. On 18 May

2016, the Judge fined Mr Collins the sum of $50,000 and ordered him to pay $5,000 towards the costs of the prosecution.4 Mr Collins appeals to this Court against the level of the fine that he received.

Background to the appeal

[5] Mr Collins took no steps to defend the charge in the District Court. As a result, the hearing in that Court proceeded by way of formal proof evidence given by affidavit. After Judge Collins found the charge proved on 16 March 2016, he adjourned the proceeding so that Mr Collins could be given notice of the date upon

which he was to be sentenced. Notice was duly given, but Mr Collins failed to



1 Motor Vehicle Sales Act 2003, s 10(1).

2 Section 8(1).

3 Section 96(1).

4 New Zealand Police v Collins [2016] NZDC 8987.

appear on 18 May 2016 when the Judge imposed the fine that is the subject of the present appeal.

[6] Mr Collins filed the appeal to this Court himself. The sole ground of appeal

is that “the fine outways [sic] the charge”.

[7] Mr Collins failed to appear when the appeal was first called in this Court on

24 June 2016. I therefore directed that it be listed again on 1 July 2016, and that Mr

Collins was to be given notice of that hearing.

[8] Mr Collins duly appeared on 1 July 2016. On that date, Woolford J set the appeal down for hearing on 5 today. He directed the respondent to provide all the disclosure required by Mr Collins no later than 8 July 2016. He then directed Mr Collins to file and serve his submissions and any authorities on which he wished to rely by 15 August 2016.

[9] Mr Collins failed to file and serve his submissions as directed. The Registry then contacted him during the week prior to the hearing in order to ascertain when he proposed to file his submissions. Mr Collins indicated he would be filing his submissions before the hearing.

[10] On 1 September 2016 Mr Collins sent the following email to the Court:

sorry have just heard I am to appear on same day same time in the sapream [sic] court will need another court date, I still have to get legal aid sorted out before rehearing date

[11] When the appeal was called on 5 September 2016, Mr Collins did not appear. Enquiries made by the Registry with the Supreme Court confirmed that the Supreme Court was not sitting that day. I have therefore proceeded on the basis that Mr Collins knew the appeal was to be heard on 5 September 2016, but elected not to attend the hearing. I propose to determine the appeal on the basis of the material currently on the Court file.

The legislation

[12] The purpose of the Act is to promote and protect the interests of consumers in relation to motor vehicle sales.5 It does so by creating a framework designed to regulate the conduct of persons who sell motor vehicles habitually to the public.

[13] A person who applies for registration under the Act must provide a statutory declaration confirming that the applicant is not disqualified from registration as a motor vehicle trader in his or her own right. A person will be disqualified from being registered if they have been adjudicated bankrupt or if they are banned under the Act from applying for registration. Once an applicant is registered under the Act, he or she is subject to the requirements prescribed by the Act. One of the most important of these is the requirement to provide purchasers of motor vehicles with notice regarding the rights available to them under the Act in the event that they later

encounter problems with the vehicle that they purchase.6

[14] The sale of motor vehicles by unregistered persons is now a significant problem exacerbated by the fact that the regulatory authorities find it difficult to detect. In the past, motor vehicles were often sold from premises occupied by motor vehicle dealers or through advertisements placed in newspapers and magazines. The position has changed significantly in recent years because many motor vehicles are now sold online through websites such as TradeMe. This permits the sale of motor vehicles to occur in circumstances where the identity of the vendor remains relatively anonymous and the advertisement can be removed from the website as soon as the sale has been completed. For that reason the regulatory authorities have attempted to enforce compliance with the legislation by monitoring the sale of motor vehicles as they occur. This is primarily done by monitoring documents filed with the New Zealand Transport Agency in order to record a change of ownership when a motor vehicle changes hands. This is the means by which Mr Collins’ most recent offending was detected.

[15] Persons who elect to sell motor vehicles otherwise than in accordance with the provisions of the Act gain the obvious benefit of not being required to comply

5 Section 3.

6 Section 14.

with the requirements of the Act. Purchasers who deal with persons such as Mr

Collins do so without being advised of their rights under the Act.


The Judge’s approach

[16] After discussing the statutory regime, the Judge noted Mr Collins’ previous convictions. He also noted that Mr Collins had been fined the sum of $30,000 on the last occasion on which he had been before the Court. The Judge’s reasons for imposing the maximum penalty for the present offending are encapsulated in the following remarks in his sentencing decision:

[20] The general matters or matters of specific importance I need to take into account today is that the Sentencing Act says that I am to have regard to the ability of the defendant to pay a fine. So that is one matter that has to be clearly borne in mind. Another factor is the complex issue of to what extent, if any, recidivism can be brought to bear in setting the starting point.

[21] The prosecutor has helpfully drawn my attention to the Court of Appeal decision in Columbus which it would be fair to say not only challenged the orthodoxy to that point of burglary sentencing in building in recidivism into the starting point but said that that effectively was wrong. If the Court did not go so far as to say it was wrong, the Court said that what needed to be taken into account was that there was not to be double counting or that a defendant not be punished twice. However, the really true value or rationale for an uplift for previous convictions is protection of the community and in a case such as this, and by that I mean consumer protection, while it will always be possible to imagine a more blatant case of such offending with more previous convictions, without question Mr Collins’ case this time falls into the band of the most serious cases and that is because his blatant recidivism and disregard of the law brings him within that category.

[22] Now in those circumstances, applying s 8(c) of the [Sentencing] Act, I simply cannot see in his case how the imposition of the maximum penalty can be avoided. Back in 2014 His Honour Judge Paul observed –

I am not prepared to impose the maximum. There will always be, in my view, a more serious case but I can characterise this certainly as serious offending of its kind.

when he imposed a fine of $30,000.

[23] While I might agree that there can always be a more serious case, s 8(c) does not require this case to be the most serious. It just has to fall into the category of cases which are at that top end of seriousness.

[24] So while strongly cautioning myself that an offender is not to be punished twice, or punished again for previous offences, the point has been reached now where his offending is so blatant and with such disregard of the law that the maximum sanction is required. So he will be fined $50,000. ...

Decision

[17] The most significant feature about Mr Collins’ offending is that it occurs in circumstances where he knows and intends to break the law. Mr Collins has clearly chosen to flout the law by deliberately continuing to sell motor vehicles to the public even though he knows that he is banned by law from obtaining registration under the Act.

[18] The present offending occurred in circumstances where Mr Collins had been convicted of similar offending in January 2006, July 2006, April 2008, March 2010 and June 2014. He was prosecuted on those occasions for selling between 7 and 27 motor vehicles within 12 periods. On the first occasion, he received a fine of $1,250. On the next four occasions, he was fined the sums of $2,500, $5,000, $7,500 and

$10,000 respectively. On the fifth occasion, he was fined the sum of $30,000.

[19] Previous fines have obviously had no effect on Mr Collins. He knows the fines have become progressively more severe, but he continues to offend nonetheless. Judge Paul observed, when he sentenced Mr Collins in June 2014, that fines imposed in this area cannot be regarded as a licence fee to break the law.7 It is clear that Mr Collins now regards fines in that way because he appears content to pay them in order to continue reoffending.

[20] In the context of commercial offending of this type I do not consider it necessary to rely on the principles contained in R v Columbus.8 That case relates to the manner in which the courts are to approach sentencing in cases involving recidivist burglars. That issue falls to be determined in a significantly different context because the maximum penalty for burglary is 10 years imprisonment. As a result, the courts have the full range of sentencing options available when sentencing recidivist burglars. By way of contrast, the maximum penalty for offending under the Act is a fine of $50,000.

[21] I consider that the purposes and principles of sentencing contained in ss 7 and

8 of the Sentencing Act 2002 are sufficient to provide an adequate response to Mr

Collins’ offending. The sentencing purposes of deterrence, denunciation and the need to hold Mr Collins accountable for his conduct are clearly to the fore.9

Previous convictions are also an aggravating feature.10 Mr Collins has now reached

the stage where the courts have no option but to regard him as having clearly demonstrated that he is not willing to deviate from his chosen path of offending.

[22] Increasing the level of fine to be imposed on Mr Collins is not to punish him again for earlier offending. Rather, his refusal to heed fines imposed previously means that the present offending is rendered more serious. On the last occasion on which Mr Collins was before the Court, he received a fine of $30,000. A fine of that magnitude would be sufficient to deter most people from continuing to offend. Clearly it has not deterred Mr Collins because he offended again in a similar way a short time later. The only reasonable explanation for this can be that he still finds it commercially worthwhile to continue to offend.

[23] Section 8(c) of the Sentencing Act requires the court to impose the maximum penalty prescribed for an offence if the offending is within the most serious of cases for which that penalty is prescribed. It must take that step unless the circumstances relating to the offender make it inappropriate to do so. I consider the Judge was correct to conclude that Mr Collins’ offending now falls within the most serious of cases of its type. Furthermore, there is nothing about his circumstances to render imposition of the maximum penalty inappropriate. Mr Collins has been able to pay the fines imposed in the past and there is no reason to believe he will be unable to pay the fine the Judge imposed. As a result, s 8(3) required the Judge to impose the maximum available penalty.

Result

[24] The appeal against sentence is dismissed.





Lang J

Solicitors:

Crown Solicitor, Auckland


NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2016/2106.html