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

ABDULWAHAB v REGISTRAR OF MOTOR VEHICLE TRADERS [2019] NZHC 3100 [26 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-0387[2019] NZHC 3100BETWEEN NABIL ABDULWAHABAppellantAND REGISTRAR OF MOTOR VEHICLETRADERSRespondentDate of hearing: 26 November 2019Appearances: N C King for the appellantHAM Watts for the respondentDate of judgment: 26 November 2019ORAL JUDGMENT OF JAGOSE JSolicitors/Counsel:Noel King Barrister, ManukauKayes Fletcher Walker Limited, Auckland[1] Nabil Abdulwahab appeals the $4800 fine imposed by Judge J B Bergseng inthe District Court at Manukau on 30 July 2019,1 following Mr Abdulwahab's guiltyplea to one charge of carrying on the business of motor vehicle trading without beingregistered,2 and exactly consistent with the Judge's prior sentence indication.3Background[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 personis treated as trading in motor vehicles if they sell more than six motor vehicles withintwelve consecutive months, unless they prove they "were not sold for the primarypurpose of gain".5 Those who "sell motor vehicles otherwise than in accordance withthe provisions of the Act gain the obvious benefit of not being required to comply withthe requirements of the Act".6[3] Mr Abdulwahab sold ten motor vehicles between 13 November 2016 and 12November 2017. He sold three more vehicles in January, February and April 2018,after receiving (non-)compliance letters from the registrar earlier in each January andFebruary 2018. He was not then a registered motor vehicle trader, but since has beenregistered, three months after which this proceeding was brought.[4] Judge Bergseng did not stray from his sentence indication and no furthersubmissions were made at sentencing (although the Judge observed on indication therewas scope for further reduction on receipt of further submissions on background andability to pay).7 Mr Abdulwahab's counsel Noel King says he understood from thatthe 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, which1 New Zealand Transport Agency v Abdulwahab [2019] NZDC 17691. The prosecutor (andrespondent, here) was the Registrar of Motor Vehicle Traders, as set out in this judgment'sentitulement.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 July2019.4 Motor Vehicle Sales Act, s 10.5 Section 8(1)(b). If someone holds themselves out as carrying on the business of motor vehicletrading or imports more than 3 vehicles within the specified period, they can also be treated as atrader (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.8The obligations of registered motor vehicle traders were discussed in some depth, withthe Judge noting most were based on consumer protection.[5] Mr Abdulwahab's personal circumstances also were considered. He is aPalestinian refugee who operates a small panel beating business. To supplement hisincome, he buys and repairs damaged vehicles to on-sell. The Judge acceptedMr Abdulwahab was not actively disregarding the law; rather, he initially was unawareof, 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'slack of relevant convictions, the Judge applied a 20 per cent discount, reducing thefine to $6400. The full 25 per cent discount was applied for Mr Abdulwahab's guiltyplea, 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 adifferent sentence should be imposed.10 In any other case, I must dismiss the appeal.11The approach previously taken by courts on sentencing appeals continues to apply,12so 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 wherethe sentence is within the range that can properly be justified by accepted sentencingprinciple. Whether 'manifestly excessive' is to be assessed in terms of the sentencegiven, rather than the process by which it is reached.148 Motor Vehicle Sales Act 2001, s 3.9 Registrar of Motor Vehicles v Buchanan [2014] DCR 287; and Registrar of Motor Vehicles vHerewini [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 particularcircumstances of the offending. While no discrete error in the Judge's decision is reliedon, Mr King contends for a $4000 starting point, allocated as $1000 for each of thefour 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 centdiscount 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 Theprofitability or otherwise of the offending is immaterial to establishing the startingpoint; the fine is to impose a penalty, not a licence fee. The Judge's reference tooffenders "obtaining the financial benefit of sales without any of the obligations ofregistration" 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";16that is not met only by requiring disgorgement by those caught offending. The Judge'sstarting point does not err.[10] Mr Abdulwahab initially may have been unaware of the Act's completerequirements (although it appeared he knew enough to address the vehicles' changesin registered ownership), but they were brought directly to his attention by theRegistrar's letters. The scheme of the Act presumes unregistered motor vehicle tradingis harmful in its own right; no additional harm is required to be established. The 20per cent discount for personal circumstances accommodated Mr Abdulwahab's lackof wilful breach of the Act, and his subsequent registration. The quantum of thatdiscount is not realistically contestable.15 Registrar of Motor Vehicles v Buchanan, above n 9 (defendant faced one charge of carrying onthe business of motor vehicle trading without being registered, having sold 10 vehicles withoutbeing registered; starting point of $8000 adopted); and Registrar of Motor Vehicles Traders vHerewini, above n 9 (defendant faced one charge of carrying on the business of motor vehicletrading without being registered, having sold 11 vehicles without being registered; starting pointof $9000 adopted). Motor Vehicle Dealers Institute v Sykes [2018] NZDC 16437 also iscomparable (the defendant sold 11 vehicles without being registered; a starting point of $8500 wasadopted).16 Motor Vehicle Sales Act 2003, s 3.[11] Aside from the 25 per cent discount for Mr Abdulwahab's guilty plea, nofurther discounts were warranted. The Judge expressly allowed opportunity for furthersubmissions on Mr Abdulwahab's financial capacity to meet any fines imposed whenhe delivered his sentencing indication. No more then were made; no evidence now issought 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 manifestlyexcessive.Result[13] The appeal is dismissed.—Jagose J