Shipman Holdings Pty Ltd v Howell
[2005] QDC 344
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- Unreported Judgment
- Shipman Holdings Pty Ltd v Howell[2005] QDC 344
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Shipman Holdings Pty Ltd v Howell[2005] QDC 344
Shipman Holdings Pty Ltd v Howell[2005] QDC 344
DISTRICT COURT OF QUEENSLAND
CITATION: | Shipman Holdings Pty Ltd v Howell [2005] QDC 344 |
PARTIES: | SHIPMAN HOLDINGS PTY LTD Appellant v ERIC JOHN HOWELL Respondent |
FILE NO/S: | 1771/2005 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 11 November 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 November 2005 |
JUDGE: | Robin QC DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | Justices Act 1886 s 222 – appeal to District Court from Magistrate’s sentence – Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 1999 s 35 – corporate offender asserted that the discretion under s 12 of the Penalties and Sentences Act 1992 should have been exercised by not recording a conviction – whether offences of possessing Safety Certificates containing information known to be false or misleading (as to whether tyres on second-hand vehicles “passed”) could be considered minor – whether s 12 applies to corporations as opposed to natural persons |
COUNSEL: | M J Burns for the appellant G P Sammon for the respondent |
SOLICITORS: | Home Wilkinson Lowry for the appellant Queensland Transport Legal Office for the respondent |
- [1]In this appeal under s 222 of the Justices Act 1886, the live issue was whether convictions ought to have been recorded as part of the penalty imposed on the appellant consequent upon its plea of guilty to seven charges brought under s 35 of the Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 1999:
“35.Making, possessing or using false or misleading documents
A person must not, for a purpose under this regulation, make, possess or use a document that contains information the person knows is false or misleading.
Maximum penalty – 60 penalty units.”
The Magistrate imposed a single penalty of $5,250 over and above costs of court, which represents a 25 per cent reduction of the penalty the Prosecutor had sought. The aspect of the appeal which challenged the amount of the pecuniary penalty was not pursued.
- [2]Section 12 of the Penalties and Sentences Act 1992 requires the court to consider whether or not to record a conviction. Speaking generally, the circumstances to which a sentencing court is required to advert apply to natural persons, rather than to companies, such as the present appellant. However, Mr Burns was able to refer to Berceanu v Boltons Real Estate Pty Ltd [2004] QDC 018, an appeal rather similar to the present one, in which one of the successful appellants taking issue with the Magistrate’s recording of convictions was a company. Judge McGill SC said:
“[10] With regard to the question of whether a conviction should be recorded, this is dealt with by s 12 of the Penalties and Sentences Act 1992, which sets out the relevant considerations in subsection (2). The various factors relevant to the exercise of the discretion were considered in some detail in R v Briese; ex parte Attorney-General [1998] 1 Qd R 487. Where a conviction might be relevant to the grant of some licence or approval, it is not appropriate to exercise the discretion simply to conceal from some relevant authority matters which ought to be known by it: R v Biessel (1996) 89 A Criminal Offence Victims Act 1995 R 210 at 212. As the majority pointed out in Briese (supra) at 492, however, this does not mean that a court must not grant an offender the benefit of non-recording of a conviction whenever it is likely that the offender might come before such an authority. In my opinion the discretion should not be distorted either way because of this consideration, although it is relevant to bear in mind this aspect of the public significance of the decision.
[11] I am not aware of any guidance from the Court of Appeal as to how the discretion should be exercised in circumstances where the offender is a corporation. On the face of it s 12 would apply to a corporation, although some of the matters referred to in s 12(2) are not readily applicable if the offender is a corporation. A corporation does not have social wellbeing, and is not concerned with finding employment. It may well have economic wellbeing, but that significance is particularly likely to relate to some authority concerned with some licence or approval. The age of a corporate offender is also of less significance, and in my opinion is really of relevance only insofar as it is a measure of the significance of an absence of other criminal convictions, or the number of such convictions.
[12] In the present case, the company had no other convictions under this or any other Act. Insofar as a company may have a good character, it had one. There is also the consideration that the offence was, if not trivial, at least minor. The important part of a requirement that the retainer of a real estate agent be in writing is to ensure that the terms of the engagement are properly recorded, in a way which hopefully will not give rise to later disputes. The use of the old form was sufficient to achieve that.”
- [3]Some of the anomalies that can arise in applying to corporate offenders some sentencing provisions ordinarily applicable to natural persons appear in Highett v Health Promotions International Pty Ltd [2003] QDC 054, which concerned Commonwealth provisions at [23]-[24].
- [4]At first instance, no conviction had been recorded against a corporate offender. Here, guilty pleas were entered. The submissions on sentence made on behalf of the company went to mitigation and in particular to the issue under s 12. The appellant’s good character and history were emphasised. The relevant car dealership had traded for 13 years without blemish, turning in excess of 11,000 vehicles. The offences were the least serious covered by s 35 of the Regulation, namely possession of documents containing information known to be false or misleading. The maker of the relevant documents was a mechanic, Mr Apps, supposedly prosecuted in related proceedings. The appellant made no use of the seven unsatisfactory documents (which related to seven only of the more than 100 vehicles in the car yard at the time, seven which were not prominently displayed for sale) by showing them to any potential purchaser of a vehicle, still less by using them in a sale. The documents were Safety Certificates, formerly popularly known as Roadworthy Certificates, without which second-hand vehicles may not be sold.
- [5]In the interests of efficiency, the appellant’s way of operating was to take from Mr Apps Safety Certificates which indicated that the subject vehicles passed in all 14 categories, one of which was “Wheels & Tyres”. This involved cutting corners, or a fiction, at the least, because it was not part of Mr Apps’ function to get the tyres on vehicles he examined and certified into roadworthy condition – in contrast to the other categories, with respect to which he would get in any parts needed and do the work of fitting them. This was all documented by him in invoices generated for specific vehicles, which would also note in writing what replacement tyres were needed to render a vehicle roadworthy or certifiable in accordance with the relevant standards. On the evidence, the appellant was meticulous in getting the tyre requirements attended to by one or other of two suppliers, which provided references tendered before the Magistrate. According to these, it was common for the appellant to replace (with new tyres, not retreads) all four tyres, even where only one might have been required. Thus, there was a good deal of material before the court to show that, so far as the appellant is concerned, there did not eventuate and was not likely to eventuate the outcome which the Regulation sought to guard against, described by the Magistrate as “risk of a vehicle being sold on to a consumer with a Safety Certificate which was displayed in this vehicle … with the defects … The legislation … requires the members of the public, the consumer, have a certificate which ensures that a particular vehicle meets the minimum standard which will allow that vehicle to be used on the road.” Section 35 in this context must be accepted as being an important provision for protection of consumers, indeed of their and the general public’s safety.
- [6]The Magistrate was told (as was this court on the appeal) that the appellant’s being caught, when an inspection occurred on 22 June 2004, with seven Safety Certificates in contravention of s 35 – in that a pass rating had inappropriately been accorded “Wheels & Tyres” - had much to do with the absence from work of a responsible employee, Mr Persch, because of a family emergency. I took this to mean that, but for his difficulty, Mr Ruseley would not have found vehicles with unsafe tyres. It is difficult to accept that explanation. The emergency was not of long duration, in terms of days. The dates of the “dodgy” Safety Certificates found on the inspection were 18 May 2004, 1 June 2004, 2 June 2004 (2), 8 June 2004 and 21 June 2004 (2). Mr Sammon, the respondent’s counsel was permitted to provide those (indeed fuller) particulars. The last two are consistent with the appellant’s assertion that tyres were immediately attended to in accordance with Mr Apps’ advice. The same cannot be said in respect of vehicles that may have been around in unroadworthy condition, but with clear Safety Certificates, for periods of two, three, even up to five weeks.
- [7]I accept from Mr Burns, counsel for the appellant, that it may be unreasonable to expect immediate attention to tyres, that the process of preparation of vehicles for sale might be quite protracted, that, after Mr Apps had (supposedly) got vehicles roadworthy, they may have required attention in other respects, such as detailing. Looking at the circumstances more widely makes it very difficult to accede to submissions that the appellant’s breaches were minor, technical or occasioned by accidental factors, such as Mr Persch’s family emergency. The appellant must be taken to have been content with the way in which Mr Apps completed the Safety Certificates.
- [8]Exhibit 1 in the appeal was a bundle containing the Certificate in respect of a Mazda 626 dated 18 May 2004, accompanied by Mr Apps’ firm’s invoice (dated 20 May 2004) showing work done and noted “needs tyres”, and Mr Ruseley’s Defect Notice of 22 June 2004 requiring that Car King “replace right side front tyre”. The Certificate is in a form which requires the approved examiner to place a tick or a cross in boxes, indicating his or her assessment of the vehicle in 14 respects, on the “1st inspection” and on the “Final inspection”. The Certificate in Exhibit 1 (which was not suggested to be untypical) shows ticks in all categories (except for Modifications, which apparently did not apply) for the first inspection. The document contains no details for any Final inspection (which the form says must not be more than 14 days from the date of first inspection). In relation to a majority of the problem vehicles, they had not been got into the requisite condition within the 14 day period.
- [9]The case for not recording a conviction is nowhere near as sympathetic as was that before Judge McGill. Boltons Real Estate faced only a single charge; it had generated the equivalent (but admittedly less comprehensive and perhaps less protective of its client) document required by the superseded legislative arrangements. It suffered the effective penalty of loss of commission its services earned. There is nothing equivalent here. I would not regard the seven offences here as trivial or minor, when seen collectively. I do not suggest that the outcome in Bolton’s Real Estate, or the outcome in any other particular sentence or sentences, should indicate what the proper outcome is for the present appellant.
- [10]As Thomas and White JJ put it in R v Briese, ex parte Attorney-General [1998] 1 Qd R 487 at 490:
“In our view a direction under s. 12 of the Penalties and Sentences Act is part of an order and if the exercise of that discretion is outside the range of proper exercise of discretion, this court may interfere on an appeal of this kind.”
The classic statement of an appeal court’s approach is found in House v The King (1936) 55 CLR 499 at 504-5:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
While examples of successful appeals against the exercise of a s 12 discretion either to record or not to record a conviction may be found (Briese was one), the significant hurdle presented by the House principles must always be kept in mind.
- [11]One of the considerations identified in Briese which has some importance here, given the reference made to licensing or similar requirements affecting the appellant, appears in the majority judgment at 491-92:
“The existence of a conviction sometimes involves direct disadvantage under the law, as for example under the Corporations Law. A person who has been convicted on indictment of any offence, or of other prescribed offences is prohibited for five years from being a director of or taking part in the management of any corporation (Corporations Law s. 229). However `it is not the position that a conviction should never be recorded if it will have an adverse impact upon an applicant because of the consequences attached to a conviction by other legislation’ (R. v Hagan C.A. 442, 443/1996; Court of Appeal, 15 November 1995, unreported). The court in that case added:
`That section exists to protect the public, and it is not appropriate that this Court should routinely fashion a special order with the object of defeating the operation of such a section.’
In R v Biessel (C.A. 424, 425/1996; Court of Appeal, 12 November 1996, unreported), McPherson J.A. observed:
‘In my opinion it really misapprehends the purpose and function of provisions like section 12 (of the Penalties and Sentences Act) to suppose that the provisions they confer are designed to be concealed from bodies or authorities whose duty it is to determine whether or not an applicant is a fit and proper person to be licensed under a particular statute.’
In that case White J observed:
`The applications against recording of a conviction also seem to me to give an unwarranted benefit to the applicants which will have the effect of seeking to hide from the liquor licensing authority and the Department of Consumer Affairs which administer the Auctioneers and Agents Act conduct which really ought to be taken into account by them when considering the issue of any such licences.’
Those observations should not be taken as laying down a rule that the court must not grant an offender the benefit of non-recording of a conviction whenever it is likely that the offender might come before such a board; it is a stricture to look at the matter carefully and to bear in mind the potential public harm that may result from the court’s authorising concealment of the truth.”
- [12]It is not for the court to determine how regulatory authorities concerned with any profession or area of business or commerce ought to exercise their responsibilities. No suggestion is made that the appellant is deserving of having disciplinary measures imposed. Indeed, on the material placed before the court, if it enjoyed jurisdiction to impose some disciplinary order, over and above what the Magistrate has done, a case would not have been made out for it. If the matter is pursued, the material before the relevant authority may be very different. It may be that the recording or not of a conviction has no impact at all. The matter was not gone into.
- [13]One of Mr Burns’ arguments was that it did not appear that the Magistrate had exercised the s 12 discretion at all, although he had been asked to, favourably to the appellant, by its then counsel, following which the respondent’s then representative was invited to make “submissions on whether or not a conviction should or should not be recorded” – which he had not adverted to. The response was:
“No, your Honour, I did not. The Department’s policy, where practical, have the conviction recorded in the Court’s records.”
That appears at the foot of p 10 of the transcript and was followed immediately, on the final page, by an assertion by the Prosecutor, who finally acknowledged it had “nothing to do with what’s before you at the moment, your Honour”, that there had been a complaint by a member of the public who purchased a vehicle from “Get Set which is apparently … part of Shipman Holdings”, leading to Mr Apps and inquiries of him then leading to the inspection on 22 June 2004. One would hope the Magistrate took no notice of that.
- [14]It was submitted that his Honour’s comment:
“It has been my experience in the past in these sorts of matters where the mechanic’s been the one to come and say, well, if I did not do it that way, I would not have the work, which the Courts have not condoned in the past and I am certainly not going to condone this behaviour.”
indicates that the Magistrate allowed himself to be distracted by irrelevant matters. I am not persuaded that anything untoward occurred here. The Magistrate may have been suggesting that it was a “buyer’s market” in the sense that a dealer in the position of the appellant could exert pressure on a mechanic anxious to get business. I am not sure whether the appellant was suggesting that Mr Apps had some control, so that it was effectively compelled to do business his way. That is not particularly persuasive. One would think that he would be willing to do the extra work of a Final inspection, revealing whether tyre requirements had been attended to, if he were to be paid for it.
- [15]As to doubts expressed on the appellant’s behalf regarding whether the Magistrate actually recorded a conviction at all, as to which the reasons are silent, in that the statement that the appellant was (by agreement) “convicted and fined” was not decisive of the issue, it is to be noted that he said:
“In respect of whether a conviction should not be recorded, I believe it is a matter, as I said, that the offence has been committed which would be a problem to the defendant company rather than whether or not a conviction is recorded, and I have considered those matters set out in section 12 of the Penalties and Sentences Act which I am required to do so.
And whether the defendant is required to show cause, why any particular licence should continue, is a matter that he will have to deal with, because I believe for me to record a conviction on the basis that it simply might sway a governing authority of not looking at the actual facts which lead to the breach is not appropriate. And I am sure that any governing body will look at those matters rather than whether or not a conviction has been recorded.”
Further, the bench complaint sheet bears the familiar “rubber stamp” endorsement, completed and signed by his Honour, with “Conviction not recorded” struck out and “Conviction recorded” remaining. There cannot be any doubt about an order for recording of a conviction’s having been made. Doing so fell within the bounds of the discretion which his Honour had. His reasons demonstrate that he considered the issue; they advert to some of the relevant considerations. It does not appear that any others capable of affecting the outcome must have been overlooked.
- [16]The appeal will be dismissed.