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The Queen v Gliddon[2021] QDC 137

DISTRICT COURT OF QUEENSLAND

CITATION:

The Queen v Gliddon [2021] QDC 137

PARTIES:

THE QUEEN

V

ANTHONY GLIDDON

(defendant)

FILE NO:

330/19

DIVISION:

Criminal

PROCEEDING:

Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

12 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

29 June and 9 July 2021. Defendant’s written submissions dated 2 July 2021. Crown written submissions dated 5 July 2021.

JUDGE:

Smith DCJA

ORDER:

  1. I record a conviction.
  2. I sentence the defendant to 15 months’ imprisonment.
  3. I order the sentence be suspended forthwith and the defendant must not commit another offence punishable by imprisonment within the period of two years if he is to avoid being dealt for the suspended term of imprisonment.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – where defendant pleaded guilty to one count of fraud – whether the defendant honestly believed the law allowed “written off” caravans to be registered in Queensland – whether a fine should be imposed or a suspended sentence

LEGISLATION:

Criminal Code 1899 (Qld) s 408C

Evidence Act 1977 (Qld) s 132C

Motor Dealers and Chattel Auctioneers Act 2014 (Qld) s 62

Penalties and Sentences Act 1991 (Qld) s 12

Road Transport Act 2013 (NSW) ss 83, 84, 85, 86, 89

Road Transport (Vehicle Registration) Regulations 2017 (NSW) rr 101, 102, 103   

Transport Operations (Road Use Management) Act 1995 (Qld) ss 4, 53

Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld) rr 17, 80, schedule 8

CASES:

Ostrowoski v Palmer [2004] HCA 30; (2004) 218 CLR 493, cited

R v Dillon Ex parte Attorney-General [2015] QCA 155; [2016] 1 Qd R 56; 253 A Crim R 492, cited

R v Elias [2013] HCA 31; (2013) 248 CLR 483, applied

R v Moxon [2015] QCA 65, distinguished

R v Singleton & Anor [2019] QCA 302, distinguished

The Attorney-General of the Northern Territory v SJE [2020] NTCA; 284 A Crim R 165; 353 FLR 322, applied

COUNSEL:

Mr D Finch for the Crown

Mr CFC Wilson for the defence

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Guest Lawyers for the defence

Introduction

  1. [1]
    The defendant has pleaded guilty to one count of fraud. The count reads:

“That on divers dates between 12 August 2013 and 18 August 2016 he dishonestly induced the Chief Executive of the Queensland Department of Transport to register caravans, an act they were entitled to abstain from doing.”

  1. [2]
    I take into account the plea of guilty and reduce the penalty I would otherwise have imposed by reason of the plea. The plea of guilty is to a lesser charge than the original charges.
  2. [3]
    If the matter had proceeded to trial it would have lasted about three weeks. In those circumstances full credit should be accorded to the plea of guilty which shows cooperation in the administration of justice and has saved the cost of a lengthy trial.

The facts

  1. [4]
    The defendant operated a business named Action Caravans from a shed located in Capalaba. In September 2016, police commenced operation Papa Wagon after a member of the public contacted them with concerns about the legitimacy of the caravans the defendant was selling. The defendant purchased caravans from auction houses and on sold them. He held two registered accounts with two auction houses, Pickles Auctions and Manheim Auctions. Most of the auctions were held in New South Wales but a small number were in Queensland and one in South Australia.
  2. [5]
    The auction houses acted on behalf of insurance companies and major corporations and conducted salvage auctions to the public with respect to written off vehicles.
  3. [6]
    Between January 2013 and December 2016, the defendant purchased 42 written off caravans from Manheim Auctions and 31 written off caravans from Pickles Auctions. The caravans purchased by him were advertised by the auction houses as being written off caravans. Tax invoices provided to the defendant indicated that the caravans were write offs. They were identified by the auction houses at point of sale and in the invoices provided as statutory write offs in the state in which they offered for sale.
  4. [7]
    Two examples of the invoices have been tendered as Exhibit 4. The first invoice from Pickles dated 24 November 2014 notes “sold with no plates – statutory write off”. The second invoice from Manheim dated 15 May 2015 notes “statutory write off unable to be reregistered”. The caravans purchased by the defendant were commercially manufactured caravans such as Jayco and Coromal. Each caravan had three primary identifiers:
  1. 1.A VIN number stamped into the frame of the caravan. If a vehicle, such as a caravan is statutory write off, it’s VIN number is recorded in the Written Off Vehicle Register (“WOVR”), the Register for Encumbered Vehicles (“REVS”) and into the National Exchange of Vehicle and Driver Information System (“NEVDIS”) which allows potential buyers to check for encumbrances prior to purchase.
  1. 2.A chassis number compromising six alpha numeric characters usually the six digits of the VIN and stamped to the frame of the caravan.
  1. 3.A compliance plate is affixed to the frame or body of the caravan with the manufacturer, make/model, VIN and manufacture date of the caravan.
  1. [8]
    After the defendant purchased a written off caravan from an auction it would be delivered to his work shed in Capalaba where he removed the VINs, chassis numbers and in most cases the compliance plate. He typically painted over the existing VIN and chassis number and stamped in a new VIN that he obtained from Queensland Transport into the frame of the caravan. The new VINs assigned to the caravans were consistent with being issued for homemade caravans.
  2. [9]
    He also affixed a surrogate compliance plate stating that he was the manufacturer and the caravans were homemade. Surrogate compliance plates are issued by Queensland Transport for low volume manufacturers and homemade caravans.
  3. [10]
    Most of the caravans were written off because of hail or water damage or some other causes. The defendant would perform minor repairs, occasionally replace the damaged panels and did other superficial remedial work. The caravans displayed the original badges and signage despite the new compliance plates stating they were homemade. The defendant advertised the caravans for sale on Gumtree and eBay.
  4. [11]
    Prior to buyer taking possession of a caravan, the defendant obtained safety and gas certificates and registered them with the Department of Transport and Main Roads as homemade caravans. To obtain registration for the caravans he completed a trailer inspection sheet and a vehicle registration application. He completed the registration application in respect of each van. At question 11 of the application, an inquiry was made of the defendant whether the vehicle had been previously registered in any Australian State or Territory and if so, it required the previous plate number and the State or Territory. Despite knowing the provenance of the caravans as having been previously registered and written off interstate (or in Queensland) the defendant failed to disclose the information to the Department. On most occasions he positively asserted the caravan had not been previously registered by answering no to that inquiry but on a small number of occasions he failed to disclose any answer. Exhibit 4 provides two examples of the registration applications.
  5. [12]
    Relevantly reg 17 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld) (“TORUMVRR”) provides that the Chief Executive may refuse to register a vehicle (which includes a caravan) if inter alia its VIN number is the same as VIN number recorded in the Queensland Register as a statutory write off or on a register kept under corresponding law to the Regulation.
  6. [13]
    Twenty-one of the caravans sold by the defendant were registered prior to him becoming a licenced motor vehicle dealer in Queensland on 16 February 2015. In order to become licenced, the defendant was required to complete training which included instruction on the statutory and regulatory requirements to obtain registration for vehicles and the statutory obligations of licenced motor dealers. That training was completed by the defendant in a course provided on 9 February 2015.
  7. [14]
    After becoming a licenced motor vehicle dealer, the defendant continued to fail to declare the previous registration on the applications with respect to a further 53 caravans. Of the 53 caravans he indicated that 35 had not been registered. In respect of the remaining 18 vans he omitted to make any answer to the enquiry.
  8. [15]
    As part of the sale process for those caravans there was additional documentation being a contract of sale and a Form 12 provided by the defendant to each buyer. The defendant failed to disclose in those documents the previous registration.
  9. [16]
    The defendant did indicate in discussions with prospective purchasers that he had purchased the caravans, interstate at auction or from insurance companies as write-offs. What he was questioned on occasions as to the process of having them registered as “homemade” he said that it could be done that way because the rules were different in Queensland compared to interstate. He assured the purchasers that the van to be sold would be registered in Queensland.
  10. [17]
    The purchasers of the caravans registered in Queensland and sold by the defendant which had previously been entered into the written-off vehicles register in New South Wales as statutory writtenoff vehicles and the six caravans entered into the Queensland register as statutory write-offs have since been informed by the Department they are not to be used on the road and the registration has been cancelled or renewed pending further investigations.
  1. [18]
    On 5 December 2016 police executed a search warrant at the defendant’s work and home addresses. A number of items were seized including a knowledge test (Australian Automotive Training) completed by him on 9 February 2015.  A question on the test was whether the statutory write-off could be reregistered, and he ticked the box “no”.
  2. [19]
    During the search warrant the defendant admitted to purchasing statutory written-off caravans, grinding off their VINs and “resurrecting” them. He said he took the caravans apart and rebuilt them. When asked by police what materials he used to rebuild the caravans he said “I don’t think I want to say anymore. I don’t understand what the problem is.” He acknowledged he was aware that a statutory write-off could not be registered but maintained that he had not done anything wrong because there was a “grey area” in the law. He was charged later with fraud offences and declined to participate in a formal interview.

Extent of criminality

  1. [20]
    An issue arose between the parties as to the extent of criminality here. The Crown in its written submissions[1] submits that the Queensland caravans could not be re-registered in Queensland as they were “statutory write offs”.
  2. [21]
    The crown further submits with respect to the New South Wales vans that they were “statutory write offs” under a corresponding law, and also could not be registered in Queensland.
  3. [22]
    The crown submits that while there are no issues of road safety, the capacity of the purchasers to use and/or register the caravans has been called into question as a resultof the dishonest disclosure/non-disclosures by the defendant.
  4. [23]
    The defence in its written submissions[2] submits that the plea is on the basis that the defendant accepts that ordinary honest people may consider his conduct dishonest,[3] but it is not accepted that he was being subjectively and deliberately dishonest. Save for his failure to disclose prior registration (and in some cases positively asserting no prior registration) to Queensland Transport, the defence does not accept that he was doing anything “illegal” in otherwise registering the New South Wales vans. The criminality is confined to either ticking the box declaring the caravan had not previously been registered and, in some cases, merely omitting to tick the box.
  5. [24]
    The defence position is that the defendant believed he was entitled to lawfully register the written-off caravans in Queensland at least if the repairs had been done and the caravan certified safe by accredited inspectors. It is argued that written-off caravans purchased from New South Wales are able to be legally registered in Queensland.
  6. [25]
    The defence points out that cross-examination was undertaken of three Crown witnesses at the committal. They are all inspectors of the vans for roadworthy and/or gas compliance certificates. Trevor Jeremy gave evidence that he was aware the vans had been written-off and made enquiries with Queensland Transport about the compliance plate for a “Gliddon” caravan when it was obviously manufactured by Jayco. He was told that what the defendant had done was legal and they gave him a VIN number and sold him a compliance plate.
  7. [26]
    Ian Reynolds another inspector gave evidence and a sworn statement. He knew they were written-off caravans. He rang the compliance section of Queensland Transport to ask about the legalities of what the defendant was doing as he was unsure. He was advised it was legal and Gliddon could do it. 
  8. [27]
    Jason Burt gave evidence that he saw the caravans and other manufacturer’s names such as Jayco, Coromal etc. while the compliance plates recorded “Gliddon homemade”. He too enquired with Queensland Transport and was told there was a loophole and it was all right.
  9. [28]
    The plea is entered on the basis that at least some representative of the Department was aware of what the defendant was actually doing and represented to others even if not to the defendant himself that it was legal. This is relevant in sentencing.[4]
  10. [29]
    In light of the issues raised it is necessary to examine the relevant statutory provisions.
  11. [30]
    Turning first to Queensland, one must have regard to the reg 17 of the TORUMVRR which provides:

“(1) The Chief Executive may refuse an application for the registration of a vehicle if the chief executive reasonably believes –

  1. (a)
    information given on the application is false or misleading; or
  2. (b)
    the vehicle’s chassis number or VIN is the same as the chassis number or VIN of a vehicle recorded in the register, or in a register kept under a corresponding law to this regulation, as a statutory write-off.”
  1. [31]
    Regulation 80 of TORUMVRR provides:

“(1) A person must not use, or permit to be used, on a road a vehicle that is recorded in a relevant register as a statutory write-off.

Maximum penalty—20 penalty units.

  1. (6)
    In this section—

relevant register means—

  1. (a)
    the register; or
  1. (b)
    a register kept under a corresponding law to this regulation.”

Queensland vans

  1. [32]
    Turning to the Queensland caravans the term “statutory write-off” is defined in Sch 8 of TORUMVRR as:

statutory write-off means a notifiable vehicle that is a total loss because of—

  1. (a)
    damage by corrosion; or
  1. (b)
    damage that satisfies the statutory write-off assessment criteria for the vehicle.

“Notifiable vehicle” means

  1. (a)
    a vehicle that—
  1. (i)
    is a late-model vehicle[5] of 1 of the following types—
  1. (A)
    a motor vehicle with a GVM not over 4.5t;
  1. (B)
    a motorbike;
  1. (C)
    a caravan;
  1. (D)
    a trailer with an ATM over 4.5t; and
  1. (ii)
    complies with the requirements of all Australian Design Rules applying to it; or
  1. (b)
    any other vehicle of a type notified by the chief executive by gazette notice.”
  1. [33]
    It is not in dispute the Queensland caravans are notifiable vehicles.

“Total loss” means

total loss means a notifiable vehicle—

  1. (a)
    damaged by corrosion to the extent that the vehicle’s fair salvage value, when added to the cost of repairing the vehicle for use on a road or road-related area, would be more than the fair market value for a vehicle of equivalent make, model and year of manufacture that is not damaged by corrosion; or
  1. (b)
    damaged by accident, collision, demolition, dismantling, fire, flood, trespass or other event to the extent that the vehicle’s fair salvage value, when added to the cost of repairing the vehicle for use on a road or road-related area, would be more than the vehicle’s fair market value immediately before the event that caused the damage.

“Statutory write-off Criteria” means:

statutory write-off assessment criteria means—

  1. (a)
    for a notifiable vehicle that is a motor vehicle with a GVM not over 4.5t—the criteria mentioned in the document entitled Damage Assessment Criteria for the Classification of Statutory Write-Offs (National Written-Off Vehicle Criteria), as approved by the chief executive; or
  1. (b)
    for a notifiable vehicle that is a trailer with an ATM over 4.5t, a motorbike, a caravan or a vehicle of a type notified by the chief executive by gazette notice—the criteria mentioned in the document entitled Damage Assessment Criteria for the Classification of Statutory Write-Offs—Motorbikes, Caravans, Heavy Trailers and Other Vehicles, as approved by the chief executive.

Editor’s note—

The documents mentioned in paragraphs (a) and (b), as approved by the chief executive, are available on the department’s website.

repairable write-off—

  1. (a)
    means a notifiable vehicle that is a total loss but is not a statutory write-off; and
  1. (b)
    in the context of a written-off vehicle inspection and a written-off vehicle inspection report, includes a vehicle with a chassis number or VIN that is the same as the chassis number or VIN of a vehicle recorded in the register, or in a register kept under a corresponding law to this regulation, as a repairable write-off.”
  1. [34]
    Therefore, in Queensland a vehicle that is a “total loss” is assessed as either a “statutory write-off” or a “repairable write-off”.
  2. [35]
    It is assessed and then recorded in the written-off vehicle register as a “statutory writeoff or a “repairable write-off” according to specific criteria in Queensland.
  3. [36]
    A “statutory write-off” is a notifiable vehicle that is a total loss because of corrosion or damage that satisfies a relevant statutory write-off criteria. The “Statutory write-off criteria” was marked as Exhibit 7.
  4. [37]
    Once a caravan is shown to be a notifiable vehicle in order to establish it is a “statutory write-off” it would need to be proved that it was a total loss because of corrosion or due to damage satisfying the statutory writeoff assessment criteria.
  5. [38]
    Total loss is what would ordinarily be considered an economic write-off (i.e. it costs more to fix than its fair value). If a notifiable vehicle is a total loss (economic write-off) due to corrosion, it is a statutory write-off. 
  6. [39]
    However, for any other type of damage, even if the caravan was uneconomical to repair, reference needs to be had to the statutory write-off assessment criteria.
  7. [40]
    The relevant statutory write-off assessment criteria for caravans provides that a caravan is a statutory write-off if it is a total loss because of:
  1. (a)
    Fire damage
  1. (b)
    Being immersed in water to the chassis or frame for any period of time
  1. (c)
    Has been stripped of any parts, panels or components and is a total loss as a result.
  1. [41]
    In those circumstances in my opinion, hail damage, of itself, would not render a caravan a “statutory write-off” in Queensland. It might be that some of the caravans in this case were “repairable write-offs”.
  2. [42]
    With respect to an application to register a “repairable write-off” the Chief Executive may only refuse this if the van does not have a written-off vehicle inspection report under Reg 17(3) TORUMVRR. There is also a discretion to grant registration of such a vehicle if the Chief Executive decides the damage is limited to cosmetic damage.
  3. [43]
    It therefore appears under Queensland law that a total loss is first assessed as a statutory write-off or a repairable write-off and entered in the WOVR. The Queensland regulations require a “notifier” such as an insurer or repairer to notify the Chief Executive that a particular vehicle is a total loss and either a repairable or statutory loss when they become aware of it.

New South Wales

  1. [44]
    I next turn to the New South Wales provisions. 
  2. [45]
    Write-offs are dealt with by Pt 4.5 of the Road Transport Act 2013 (NSW) (“RTA”).  The definition of “light vehicles” includes the present caravans. 
  3. [46]
    Section 83 of the RTA provides:
  1. “83
    NSW written-off light vehicles register

(cf VR Act, s 16B)

  1. (1)
    Transport for NSW is to maintain a register of written-off light vehicles (the "NSW written-off light vehicles register”) that records information about light vehicles that Transport for NSW has reason to believe--
  1. (a)
    are written-off light vehicles (

"statutory written-off light vehicles”), or

  1. (b)
    were previously written-off light vehicles but which have since been repaired and then registered ("inspected written-off light vehicles”).
  1. (2)
    The register is to contain such information as Transport for NSW thinks appropriate.
  1. (3)
    In this section

"written-off light vehicle" includes any light vehicle--

  1. (a)
    that has been assessed to be a total loss by a person in accordance with Division 3, or
  1. (b)
    that has been disposed of to a motor vehicle recycler by a self-insurer, or
  1. (c)
    that has been demolished or dismantled by a motor vehicle recycler, or
  1. (d)
    that is in the control of a motor vehicle recycler and is intended to be demolished or dismantled, or
  1. (e)
    that was recorded on the register of written-off vehicles on the day on which Part 2AA of the Road Transport (Vehicle Registration) Act 1997 commenced, or
  1. (f)
    that is prescribed by the statutory rules.”
  1. [47]
    The term “total loss” is defined in s 89 of the RTA as:

89 LIGHT VEHICLES THAT ARE A TOTAL LOSS

(cf VR Act, s 16H)

  1. (1)
    For the purposes of this Part, a light vehicle is a "total loss"if it has been damaged, dismantled or demolished to the extent that its salvage value as a written-off light vehicle plus the cost of repairing the vehicle for use on a road would be more than--
  1. (a)
    the market value of the vehicle immediately before the damage, dismantling or demolition, or
  1. (b)
    if the vehicle is insured for a specified amount (known as the sum insured), that specified amount.
  1. (2)
    The statutory rules may--
  1. (a)
    prescribe other cases as cases in which a light vehicle is a total loss for the purposes of this Part, and
  1. (b)
    prescribe exceptions to this section.
  1. (3)
    In this section—

"market value" of a light vehicle means the price that the vehicle would bring at open market, as determined (having regard to local market prices and the age and condition of the vehicle) by the person who assesses whether or not the vehicle is a total loss.

"salvage value" of a light vehicle means the value of the vehicle if sold for scrap or parts, or in a damaged state, as determined by the person who assesses whether or not the vehicle is a total loss.”

  1. [48]
    It may be seen that s 89 defines “total loss” in a similar way to the Queensland provision.
  2. [49]
    A vehicle which is a “total loss” in New South Wales is a “written-off light vehicle”.  A “written-off light vehicle” is automatically a “statutory written-off light vehicle” unless it has been repaired and then registered when it then becomes a “inspected written-off light vehicle”.  Section 84 of the New South Wales act provides:
  1. “84
    Registration of written-off light vehicles

(cf VR Act, s 16C)

  1. (1)
    Transport for NSW must not register, renew or transfer the registration of any light vehicle (or if the vehicle is registered, Transport for NSW must cancel the registration of the vehicle) if its vehicle identifier is the same as the vehicle identifier of a statutory written-off light vehicle or an interstate written-off light vehicle.
  1. (2)
    However, subsection (1) does not apply if the vehicle is the subject of an authorisation to repair and--
  1. (a)
    the application for registration is accompanied by a light vehicle certificate of compliance in relation to the vehicle, or
  1. (b)
    Transport for NSW is satisfied that the vehicle is of a class exempt by the statutory rules from the obligation to be the subject of a light vehicle certificate of compliance.
  1. (3)
    If Transport for NSW cancels the registration of a light vehicle under this section, Transport for NSW must immediately notify the registered operator of the vehicle of the cancellation.
  1. (4)
    Despite section 2.8 of the Motor Accident Injuries Act 2017 and section 14(3) of the Motor Accidents Compensation Act 1999 , a third-party policy (within the meaning of those Acts) is not cancelled immediately upon cancellation of registration of a light vehicle under this section and continues to have effect until the day on which the registered operator of the vehicle is given notice of the cancellation of registration.
  1. (5)
    Transport for NSW must not register, renew or transfer the registration of a light vehicle if to do so would breach a condition imposed by Transport for NSW on an authorisation to repair.
  1. (6)
    In this section—

"interstate written-off light vehicle" means a light vehicle recorded on a register of written-off vehicles (however described) of another jurisdiction as--

  1. (a)
    a statutory written-off light vehicle or similar (being a light vehicle that is not permitted to be registered in that jurisdiction by the vehicle registration authority of that jurisdiction), or
  1. (b)
    a repairable written-off light vehicle or similar (being a light vehicle that may in certain circumstances be registered in that jurisdiction), but only if that vehicle has not been registered in Australia since being so recorded.”
  1. [50]
    A New South Wales statutory write-off may only be registered if it has an authorisation to repair and a Certificate of Compliance. 
  2. [51]
    Section 86 of the RTA provides:
  1. “86
    APPLICATIONS FOR AUTHORISATIONS

(cf VR Act, s 16E)

  1. (1)
    An eligible person may apply to Transport for NSW for the issue of an authorisation to repair a light vehicle.
  1. (2)
    An application for the issue of an authorisation--
  1. (a)
    must be in a form approved by Transport for NSW, and
  1. (b)
    must be accompanied by a record of an assessment made in accordance with Division 3 that the vehicle has not suffered damage of a type specified in the statutory write-off assessment criteria, and
  1. (c)
    must be accompanied by any fee fixed for that purpose by Transport for NSW under section 271.
  1. (3)
    Transport for NSW may require an applicant to submit such other information as Transport for NSW thinks fit.
  1. (4)
    In determining an application, Transport for NSW must take into consideration any factors prescribed by the statutory rules.
  1. (5)
    Transport for NSW may refuse the application or may issue an authorisation to repair the vehicle unconditionally or subject to any of the following conditions--
  1. (a)
    a condition that the vehicle cannot be registered in the name of a person other than the applicant for a specified period or for an indefinite period,
  1. (b)
    any condition of a class prescribed by the statutory rules.
  1. (6)
    If the vehicle is of a class of vehicles exempt by the statutory rules from the obligation to be the subject of a light vehicle certificate of compliance, the authorisation to repair must state that fact.”
  1. [52]
    Section 85 of the New South Wales Act provides:

ROAD TRANSPORT ACT 2013 - SECT 85

85 TfNSW must refuse certain applications for authorisations

(cf VR Act, s 16D)

  1. (1)
    Transport for NSW must refuse an application for the issue of an authorisation to repair a written-off light vehicle if Transport for NSW reasonably believes any one or more of the following--
  1. (a)
    that the vehicle has suffered damage of a type specified in the statutory write-off assessment criteria,
  1. (b)
    that the vehicle is prescribed by the statutory rules as a non-eligible vehicle,
  1. (c)
    that the applicant is prescribed by the statutory rules as a non-eligible person.
  1. (2)
    This section does not limit the circumstances in which Transport for NSW may refuse the issue of an authorisation to repair."
  1. [53]
    Regulation 101 of the Road Transport (Vehicle Registration) 2017 (NSW)[6] provides as to the relevant statutory assessment criteria:

“(1) For the purposes of the definition of “statutory write-off assessment criteria" in section 82 of the Act, the following are prescribed in respect of a light trailer--

  1. (a)
    the trailer has been burnt to such an extent that it is fit only for wrecking or scrap,
  1. (b)
    the trailer has been stripped of all, or a combination of most, interior and exterior body parts, panels and components,
  1. (c)
    the trailer has impact damage (excluding scratching) to the suspension and 1 or more areas of structural frame damage,
  1. (d)
    in relation to a light trailer that is not a skeleton-type trailer or box trailer--the trailer has been fully immersed in salt water for any period,
  1. (e)
    in relation to a light trailer that is not a skeleton-type trailer or box trailer--the trailer has been fully immersed in fresh water for more than 48 hours.”
  1. [54]
    One must then turn to reg 102 and reg 103.
  2. [55]
    Regulation 102 provides:
  1. “102
    LIGHT VEHICLES THAT ARE NOT ELIGIBLE FOR THE ISSUE OF AUTHORISATION TO REPAIR

(cf 2007 reg cl 83D)

For the purposes ofsection 85(1)(b)of the Act, every notifiable light vehicle other than the following is prescribed as a non-eligible vehicle--

  1. (a)
    a hail-damaged light vehicle,
  1. (b)
    a light vehicle that was inherited by the person seeking an authorisation to repair the vehicle,
  1. (c)
    a light vehicle in respect of which the applicant for an authorisation to repair the vehicle was the registered operator of the vehicle for more than 28 days before the date on which the vehicle sustained the damage that resulted in it being presented for a total loss assessment.”
  1. [56]
    Regulation 103 provides:

103 ELIGIBILITY TO APPLY FOR AN AUTHORISATION TO REPAIR

(cf 2007 reg cl 83E)

For the purposes of section 85(1)(c) of the Act, all persons other than the following persons are prescribed as non-eligible persons in relation to a light vehicle--

  1. (a)
    the registered operator of the vehicle at the time the vehicle sustained the damage that resulted in it being presented for a total loss assessment,
  1. (b)
    any person who has inherited the vehicle from the person who was the registered operator of the vehicle at the time the vehicle sustained the damage that resulted in it being presented for a total loss assessment,
  1. (c)
    any person who intends to use the vehicle only to participate in motor sport activities approved by Transport for NSW by order published in the Gazette.”
  1. [57]
    The effect of regulations 102 and 103 appear to be that one can only apply for authorisation to repair a statutory written off vehicle in New South Wales if one is the owner of it at the time the damage is suffered or if one inherits the vehicle.
  2. [58]
    Therefore, in New South Wales one cannot buy a written-off vehicle (even with cosmetic damage) and have it repaired and registered.
  3. [59]
    In New South Wales any vehicle that is a “total loss” is recorded as a “statutory writtenoff light vehicle” unless and until such time as it has been approved for repair, assessed against the statutory write-off criteria and actually repaired. It is then listed as an “inspected written-off light vehicle” in the register.
  4. [60]
    In New South Wales, the “register” will include any vehicle that is a total loss as a “statutory written-off vehicle” until and unless it has been assessed as not suffering damage covered by the statutory write-off criteria; has been granted an authorisation to repair and has actually been repaired.  The written-off register in New South Wales records every write-off as a “statutory write-off” until it is repaired.  Once repaired, it records the repaired write-off as a “inspected written-off vehicle”.
  5. [61]
    I have already noted that s 80 of TORUMVRR notes that a person must not use or permit to be used on a road, a vehicle that is recorded in the register as a “statutory write off” either under the Queensland regulation or a corresponding law to the regulation.
  6. [62]
    Section 4 of the Transport Operations (Road Use Management) Act 1995 provides:

corresponding law – means--

  1. (a)
    a law of another jurisdiction corresponding, or substantially corresponding, to this Act or a specified provision or provisions of this Act, or
  1. (b)
    a law of another jurisdiction that is declared under the statutory rules to be a corresponding law, whether or not the law corresponds, or substantially corresponds, to this Act or a specified provision or provisions of this Act.”
  1. [63]
    The defence argues that the New South Wales provision is not a corresponding law.
  2. [64]
    In the Attorney-General of Norther Territory v SJE[7] the Court of Appeal of the Northern Territory considered a case where the Attorney-General of the Northern Territory applied for a continuing detention order or a supervision order concerning SJE. In order to obtain such an order, the respondent had to have been convicted of a “serious sex offence” within in the meaning of s 4 of the Serious Sex Offenders Act 2013 (NT). A “serious sex offence” listed offences in Sch 1 and “an offence substantially corresponding to an offence mentioned in Sch 1”.
  3. [65]
    Although the respondent had a history of committing offences of a sexual nature, he had never been convicted of an offence listed Sch 1. He had been convicted though of an offence contrary to s 474.27A of the Commonwealth Criminal Code. The Attorney contended this offence “substantially corresponded” to an offence against s 132(2)(e) of the Criminal Code 1983 (NT) which was listed in Sch 1.
  4. [66]
    The court analysed the elements of s 474.27A and the elements of s 132(2)(e) of the Territory Code. It was noted at [17]:

“It is important to keep in mind that the question is not whether the offending conduct by virtue of which the respondent was convicted of the offence under s 474.27A could also have given rise to a conviction under s  132(2)(e); the question is whether an offence defined by s 474.27A substantially corresponds whether an offence defined by s 132(2)(e).”

  1. [67]
    At [20] Kelly and Hiley JJ held:

“In our view, in the context in which it appears in the Act, the word substantially is not used in this quantitative sense but in a qualitative one. Used qualitatively, substantial means “of or relating to the basic or fundamental substance or aspects of a thing.”

“Corresponding” means “analogous or equivalent in character, form or function”.

  1. [68]
    At [21] it was held:

“Hence, for an offence from another jurisdiction to be one “substantially corresponding” to an offence listed in Schedule 1, the basic or fundamental substance of that offence must be equivalent to the offence listed in Schedule 1.”

  1. [69]
    It was held there was sufficient differences between the elements of the two sections but it could not be said that s 474.27A substantially corresponded with s 132(2)(e).
  2. [70]
    In my opinion bearing in mind the decision in SJE, I do not consider the New South Wales provision to be a corresponding law. There are significant differences between what is a “statutory write-off” in New South Wales provision and in Queensland provision such that I do not consider it substantially corresponds with the Queensland provision. In those circumstances there is a reasonable argument that s 80 of the TORUMVRR did not apply to the New South Wales vehicles although I accept the matter does remain a matter of some debate.
  3. [71]
    The crown argues that regardless, it does not really matter because of the criminality alleged here.

Conclusion

  1. [72]
    I do accept there is a degree of confusion surrounding these statutory provisions.  Bearing in mind the provisions of s 132C of the Evidence Act and the shifting onus which falls upon the prosecution, I am satisfied that the defendant may well have had a belief that the written-off vehicles could be registered and used in Queensland. 
  2. [73]
    I do, however, find that he well knew (as evidenced by the plea)  he should not have ticked “no” to question 11 or omitted to provide an answer to this.
  3. [74]
    I infer, that the reason he did not correctly answer that question was to ensure that no further investigation of the relevant caravan was conducted by the Department or as the crown puts it to obfuscate the compliance and registration process in Queensland.
  4. [75]
    At the least there would have been further requirements needed for inspection of the vans prior to registration in Queensland.
  5. [76]
    It was a case that he did this, so that no questions would be asked by the Department about the caravans and/or no further investigations were conducted.

Antecedents of the defendant

  1. [77]
    The defendant was born on 15 January 1952 and is presently 69 years of age.  He has a minor criminal history which is dated. 
  2. [78]
    He has some health issues.  Exhibit 8, a report from Dr Singh dated 28 June 2021, discloses that the defendant had coronary bypass grafting surgery in 1994 and stenting done in March 2020.  There was an acute coronary syndrome in November 2018 with a stent being supplied.  He was admitted to hospital in May 2021 because of a prolonged episode of angina.  He was stented on 26 May 2021 with a good result.
  3. [79]
    The report from Tom Hogan, psychiatrist, (Exhibit 9) dated 28 June 2021 notes that Dr Hogan had treated him since 1996.  Post-operatively after the 1996 bypass operation, the defendant developed severe panic disorder symptoms.  He also developed depression.  In summary, he has a panic disorder with agoraphobia, generalised anxiety disorder and major depression.  There is also a chronic post-traumatic stress disorder arising out of sexual abuse when he was a child.  The present legal situation has been quite stressful for him and has had a major impact on him both emotionally and financially.  He is medicated.

Crown submissions

  1. [80]
    The Crown submits that accurate and honest disclosure of the previous registration status and details of each caravan would have provided the Queensland department with the necessary information to discover each van’s status.  It is submitted that the objective seriousness as a consequence of the defendant’s dishonesty, obfuscated the compliance and registration process in Queensland and caused uncertainty for the purchasers as to the title of the caravans.  The objective seriousness of his dishonesty increased after he became a licensed motor dealer.
  2. [81]
    It is submitted there is a public importance of honesty and accuracy in the completion of such documents and general deterrence, particularly those engaged in the motor industry as of paramount importance.  Commercial dealings with motor vehicles depend upon the maintenance of the integrity of the system and the identification of the vehicles.  There is no evidence in this case the caravans were unsafe or unroadworthy however.
  3. [82]
    It is ultimately submitted in reliance on R v Singleton and R v Moxon that a head sentence of two years’ imprisonment would be appropriate, but it would be open to fully suspend the term of imprisonment involved.
  4. [83]
    In oral submissions the Crown relied on its written submissions and confirmed that the gravamen of the offending was the failure to clear the relevant information in answer to question 11. It is submitted the fact the defendant was a motor dealer after 2015 is an aggravating feature. 
  5. [84]
    On the other hand, it was submitted that the defendant has been on bail for five years and there has been no further offending.  It is accepted the plea is important and it is accepted there are health issues. It is also conceded that he might well lose his motor dealer’s licence.

Defence submissions

  1. [85]
    The defence submits that the appellant has a dated and largely irrelevant criminal history.  There has been significant delay in the matter, not attributable to the defendant which has impacted the defendant’s mental and physical health.  It is submitted that given all of the facts of the case and the antecedents of the defendant, the case has limited, if any, utility as a vehicle for general deterrence.  Personal deterrence has little importance because the defendant has lawfully traded since 2016. 
  2. [86]
    It is submitted there is an early plea to the indictment and it is pointed out there are a number of unrecoverable costs incurred by the defendant. These relate to various interlocutory applications and to the first trial.
  3. [87]
    It is also submitted that in most cases a plea would have been taken to offences contrary to s 53 of the Transport Operations (Road Use Management) Act 1995 (Qld) with the maximum penalty being 60 penalty units. An offer was made in this regard by the defence which was rejected.
  4. [88]
    As regards this point I note the High Court said in R v Elias[8]  consideration of different offences which might have been charged is a distraction and there is no warrant for a judge to take into account a lesser maximum penalty for an offence not charged.
  5. [89]
    Ultimately it is submitted this is a case where a 69 year old man has been under the heavy weight of a potential period of substantial imprisonment for some years. There have been adverse effects to his mental and physical health. The plea of guilty is based in part upon a mistake of law which was endorsed by Queensland Transport and supported by the evidence of three certifiers.
  6. [90]
    In all of the circumstances the appropriate penalty is one of a fine and a discretion exists for no conviction to be recorded. The recording of a conviction will have potential impact on the defendant’s economic wellbeing as he is still the holder of a motor dealer’s licence and in the business of repairing and selling caravans.
  7. [91]
    In oral submissions, the defence heavily relied on the exhibits tendered. It was also submitted that in 2018 the defendant rang the Department and asked if he could remove the original VIN and was told he could do so. Submissions were made by the defence as to the effect of the relevant legislation. It was pointed out the defendant believed he fell within a loophole and the vans could be registered in Queensland, but it is accepted he did not make full disclosure in the relevant forms. It was pointed out the defendant told every purchaser that the vans had been written-off. It was pointed out that there were no safety issues concerning the vans. It was disputed there was any uncertainty in the title gained and it was put that the one purchaser subsequently obtained registration.  The vehicles are safe and any repairs were minor. There was clearly a loophole in the legislation here. The defence repeated its submission that there could have been charges under the TORUM Act. The health issues were relied on and it was pointed out that the original charges involved an allegation of fraud in excess of $1,000,000 which had now been discontinued. It was pointed out there had been a trial listed in September 2020 and a number of pre-trial applications after which the matter resolved.
  8. [92]
    Ultimately, it was submitted that a fine should be imposed and a conviction not recorded because of the effect on his registration as a motor dealer. It was submitted in the unusual circumstances of this case less importance should be accorded to both general and specific deterrence. The court was informed that early on during his bail he had to report to the police station for a year.
  9. [93]
    In further written submissions the defence referred the court to s 62 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld). This section provides:

62 Immediate cancellation

  1. (1)
    A licensee’s licence is cancelled on the happening of any of the following events—
  1. (a)
    the licensee is convicted of a serious offence;
  1. (b)
    if the licensee is an individual, the licensee is an insolvent under administration;
  1. (c)
    if the licensee is a corporation, the licensee has been wound up or deregistered under the Corporations Act;
  1. (d)
    1 or more of the following persons becoming subject to a relevant control order—
  1. (i)
    the licensee;
  1. (ii)
    if the licensee is a corporation—an executive officer of the corporation.
  1. (2)
    The licensee must return the licence to the chief executive within 14 days after the happening of an event mentioned in subsection (1) unless the licensee has a reasonable excuse.

Maximum penalty for subsection (2)—100 penalty units.”

  1. [94]
    It is submitted that if a conviction was to be recorded then as the present charge is a “serious offence” as defined then the defendant will lose his motor dealer’s licence immediately. This means the defendant will be unable to repair and sell caravans and will be deprived of the sole source of income.   

Crown reply

  1. [95]
    By way of reply the Crown repeated its submission that general deterrence was crucial in this case. It was repeated that the defendant was a licensed motor dealer from February 2015. It was submitted that the six Queensland caravans were not capable of registration and there could not be any mistake on these. It was repeated there was a public interest in honesty and accuracy in this area.

Comparable decisions

  1. [96]
    The cases relied on by the Crown did have some relevance. In R v Singleton & Anor[9] the applicants pleaded guilty to fraud and were sentenced to two years’ imprisonment and 20 months’ imprisonment respectively with four months required to be served.  They operated a driving academy and were accredited rider trainers by the Department of Transport and were in a position to make decisions on who should, or who should not be eligible to obtain a driver licence for motorcycles. They issued certificates to customers to submit to the Department confirming the customer had completed the required practical and theoretical requirements to obtain a motorcycle licence. Twenty-nine certificates were issued and fees were obtained. As it turns out 44 of the customers who received and lodged these certificates were charged with fraud. IS received payments from 12 persons who were found not to have completed the required training and assessment and JS received payment from 17 persons who had not completed the required training and assessment. Crucially and unlike the present case it was noted at [7] that not only did the offending undermine the integrity of the motorcycle training system, it posed a risk to road users of having drivers on public roads without the necessary training.  This fact distinguishes the Singleton case from the instant one as there is no issue of safety here.
  2. [97]
    In R v Moxon[10] the applicant pleaded not guilty to 133 forgery counts relating to phytosanitary certificates and one count of contravening regulations. The following day he pleaded guilty to 29 forgery counts and a count of contravening the regulations. He was sentenced to two years’ imprisonment with release after serving eight months. Other offenders received penalties including fines and orders of immediate release. It must firstly be noted that the maximum penalty for each forgery offence was 10 years’ imprisonment. This is twice the maximum than in the instant case. It must also be noted that there was not an early plea of guilty.
  3. [98]
    At [41] it was noted that the company’s non-compliance put at risk Australia’s export reputation not only in respect of the timber industry but also more generally. It exposed Australia to criticism from foreign competitors. It not only put at risk the reputation of the applicant’s company but put at risk the whole of Australia’s lucrative timber export industry and had potential to cause serious harm to the Australian economy and to jeopardize the jobs of innocent people employed in the timber industry. I consider those matters distinguish that case from the instant one.

Disposition

  1. [99]
    In my opinion the present offending is serious.  Although I have accepted there may have been an honest belief as to the state of the law on the part of the defendant, the fact is the defendant deliberately and fraudulently ticked the wrong box to question 11 or failed to make a disclosure as to previous registration. 
  2. [100]
    This clearly enough interfered with the exercise of the discretion of the transport department under Regulation 17. As it turns out in this case, there were no safety issues involved but there could have been and this is why it is important for the Department to be aware of previous registrations.
  3. [101]
    One must also bear in mind there were many forms involved in this case[11] and the offence occurred over a significant period of time.
  4. [102]
    In those circumstances I do consider that general deterrence is relevant. I consider in those circumstances a fine is too low for the offending here despite the mitigating factors. I consider a term of imprisonment is warranted.
  5. [103]
    I also have regard to the fact that the defendant was a motor dealer after February 2015 and knew it was wrong to incorrectly fill out the forms.
  6. [104]
    I appreciate the fact that the recording of a conviction will have a significant effect on his income earning capacity, but I consider it is too serious not to record a conviction. I have specifically turned my mind to section 12 of the Penalties and Sentences Act 1991(Qld).  
  7. [105]
    On the other hand, there are significant mitigating factors in this case. There is the plea of guilty which saved the cost of a significant trial. There are the defendant’s health problems. There is the fact that a penalty of imprisonment (even if suspended) may have a significant effect upon his registration as a motor dealer. He has a limited old history. There is significant delay to be considered as well.

Conclusion

  1. [106]
    I have decided to impose the following orders:
  1. I record a conviction.
  1. I sentence the defendant to 15 months’ imprisonment.
  2. I order the sentence be suspended forthwith and the defendant must not commit another offence punishable by imprisonment within the period of two years if he is to avoid being dealt for the suspended term of imprisonment.

Footnotes

[1]  Exhibit 1.

[2]  Exhibit 5.

[3] R v Dillon Ex parte Attorney-General [2015] QCA 155; [2016] 1 Qd R 56; 253 A Crim R 492.1.

[4] Ostrowoski v Palmer [2004] HCA 30; (2004) 218 CLR 493.

[5] In essence this is defined as not more than 16 years old.

[6]  The 2017 provisions are the same as the provisions in the 2007 Regulations- see Road Transport (Vehicle Registration) Amendment (Written-off Vehicles) regulation 2011 (NSW) and  Road Transport (Vehicle Registration) Amendment (Written-off Vehicles) regulation 2012 (NSW).

[7]  [2020] NTCA 10; (2020) 284 A Crim R 165; 353 FLR 322.

[8]  [2013] HCA 31; 248 CLR 483 at [36]-[37].

[9]  [2019] QCA 320.

[10]  [2015] QCA 65.

[11]  There 73 registration applications. There positive misstatements in 63 forms and 18 omissions.

Close

Editorial Notes

  • Published Case Name:

    The Queen v Gliddon

  • Shortened Case Name:

    The Queen v Gliddon

  • MNC:

    [2021] QDC 137

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    12 Jul 2021

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QDC 13712 Jul 2021Date of sentence; pleaded guilty to one count of fraud; motor dealer dishonestly induced department of transport to register caravans by manner of completion of application forms; sentenced to 15 months’ imprisonment wholly suspended for 2 years (Smith DCJA).
Appeal Determined (QCA)[2021] QCA 24819 Nov 2021Leave to appeal sentence granted, appeal allowed; offence involved much lower level of criminality than appreciated below and was a comparably much less serious fraud than most; offender resentenced to $5,000 fine with default period of imprisonment in event of non-payment with no conviction recorded: Henry J (Sofronoff P and Bond JA agreeing).

Appeal Status

Appeal Determined (QCA)

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