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High Court of New Zealand Decisions |
Last Updated: 26 September 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000172 [2016] NZHC 2106
BETWEEN
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BRETT ERIC COLLINS
Appellant
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AND
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REGISTRAR OF MOTOR VEHICLE TRADERS
Respondent
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Hearing:
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5 September 2016
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Appearances:
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No appearance by Appellant
J Blythe for Respondent
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Judgment:
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6 September 2016
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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
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