NANG & ASSOCIATES PTY LTD -v- CHAN [2022] WASC 12 (19 January 2022)

Appeals from magistrates' decisions[2]

4 Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a sentence imposed in the Magistrates Court to be made on one or more of these grounds:

(a) that the court of summary jurisdiction -

(i) made an error of law or fact, or of both law and fact;

(ii) acted without or in excess of jurisdiction;

(iii) imposed a sentence that was inadequate or excessive;

(b) that there has been a miscarriage of justice.

5 Leave to appeal is required for each ground of appeal.[3]

6 The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[4] This means that the ground is required to have a real, rational and logical prospect of succeeding.[5]

7 When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[6] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[7]

[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.

8 Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in part 2 differs slightly from the framework in part 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under part 3 cannot automatically be applied to appeals under part 2.[8] There are, however, core principles that apply to appeals against sentence under both part 2 and part 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[9]

If, despite error, no substantial miscarriage of justice

9 By s 14(2) of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[10]

10 Different views have been expressed as to the scope and operation of s 14(2) where an express error is found in the sentencing process. Fiannaca J provided a useful summary in Crocker v Vinicombe.[11] In my view, the proper approach to the determination of whether, despite an express error in the sentencing process, no substantial miscarriage of justice has occurred is as follows.[12]

11 The first question is whether the appellate court can exclude the possibility that the error affected the sentence. That is, the first question is not whether the sentence was within the range of a sound exercise of the sentencing discretion. Rather, the first question is whether the error could not have made a difference.[13] An example of an error that could not have made a difference is where a legislative amendment altered the order in which a court was required to set the parole period and non-parole period of a term of imprisonment, and the court mistakenly set them in the order required by the previous legislative provision.[14]

12 It will rarely be the case that an error could not have made a difference. For that reason, the answer to the first question will usually be no. If, however, the answer to the first question is yes, the appeal will be dismissed. (It is unnecessary to resolve whether this is because the error was not material, such that the jurisdiction to allow the appeal was not enlivened, or because no substantial miscarriage of justice had occurred.)

13 If the answer to the first question is no, the appellate court should consider the sentence it would impose if it was to exercise the sentencing discretion afresh. If the appellate court would impose the same sentence, then no substantial miscarriage of justice has occurred, and the court may dismiss the appeal.

14 If the appellate court would impose a lesser sentence,[15] then the appeal should be allowed, and the court may proceed to resentence the appellant.

15 The Appeal Notice states that the sole ground of appeal is that:

The fine and additional penalty is excessive compared to other matters.

16 In its written submissions, the appellant clarified that it sought to challenge only the Fine and not the Avoided Premiums Order.[16]

17 Although the Appeal Notice contained only one ground of appeal, the appellant asserted in its written submissions that there were two grounds of appeal. First, that the Fine was manifestly excessive (ground 1). Second, that the Fine infringed the totality principle (ground 2).

18 The State did not oppose the application being amended to include the second ground. However, the State noted that, as there was only a single offence, the second ground was misconceived.

19 This matter was originally listed for hearing on 28 June 2021. During the hearing, following an exchange with the court, the appellant sought leave to add an additional ground of appeal, namely, that the magistrate erred in law in having regard to the amount of the avoided premiums in assessing the seriousness of the offence.[17] I gave the appellant leave to add this ground (ground 3), adjourned the hearing to give the respondent the opportunity to consider it, and ordered the parties to file written submissions on the new ground.

20 By s 160(1) of the WCIM Act, an employer is required to hold a policy of workers' compensation insurance. By s 170(1), an employer who fails to comply with s 160(1) commits an offence and is liable to be fined in respect of each worker to whom the offence relates. A prosecution for an offence against s 170(1) must be commenced within two years after the date on which the offence was allegedly committed.[18]

21 An offence against s 170(1) is a continuing offence. The offence, of failing to comply with the statutory obligation to get insurance, continues throughout the period in which the offender does not have insurance.

22 By s 170(2), a court convicting an employer of an offence under s 170(1) must, in addition to imposing a penalty for the breach of s 160(1), order that the employer pay to the General Account an amount equal to the insurance premiums the court finds the employer avoided having to pay by failing to obtain insurance at any time during the period of 5 years before the conviction.

23 The appellant operated a Boost Juice franchise in Midland. The appellant had been operating the franchise since 2010. It did not have insurance for its workers at any time prior to 18 October 2019. However, the prosecution notice, signed 10 March 2020, limited the allegation of the offence to the period 30 June 2018 to 17 October 2019. In that period, the appellant engaged 25 workers.

24 Relevantly to the Avoided Premium Order, in the five year period prior to the conviction, the appellant engaged 49 workers and paid $780,663.11 in gross wages. By failing to obtain insurance during this five year period, the appellant avoided premiums of $16,253.16.

25 The appellant became aware of its failure to have workers' compensation insurance during an investigation by WorkCover. The appellant cooperated with the investigation and promptly arranged to obtain the insurance.

26 On becoming aware of the prosecution,[19] the appellant effectively pleaded guilty at the first reasonable opportunity.

27 In mitigation, the appellant's director said, in effect, that she thought that she had all the necessary insurance because, under the franchise agreement, the appellant was required to take out a suite of insurance policies from a nominated broker.[20] Nevertheless, the appellant accepted, consistently with the plea of guilty, that it was the appellant's responsibility to ensure it had all necessary insurance.

28 The appellant did not adduce any evidence of its means, nor the extent to which a fine would be a burden. I was told this was an oversight.[21]

29 The appellant did not have a criminal record. No one was injured during the period when the appellant was not insured.

30 The appellant's counsel drew to the magistrate's attention the fine of $7,000 imposed on another Boost Juice franchisee, CGI Investments Pty Ltd, for the same offence of failing to hold a policy of workers' compensation insurance. Counsel said that that franchisee was of similar size to the appellant.[22]

31 Sentencing was adjourned to enable the magistrate to review the transcript of the sentencing of CGI Investments.

32 When the hearing resumed on 27 October 2021, the magistrate said that the fine imposed on CGI Investments 'was a relatively small fine of $7,000 but that was on a non-payment of approximately $2,000 insurance premiums'.[23]

33 The magistrate fined the appellant $35,000 for the offence and ordered the appellant to pay the total amount of the avoided insurance premiums to the General Account, being $16,253.16.

34 The Appeal Notice was required to be filed within 28 days of the date of sentence. The Fine was imposed on 27 October 2020. The Appeal Notice was therefore required to be filed by 24 November 2020. It was filed on 18 December 2020, 24 days late.

35 The appellant filed an affidavit sworn by its director on 15 December 2020 (December Affidavit) explaining the delay. In short, the director says that, in deciding whether to appeal against the Fine, she had discussions with two other Boost Juice franchisees (CGI Investments and Ruby Days Pty Ltd), both of whom had been convicted of failing to hold a policy of workers' compensation insurance. The director says she asked both of the other franchisees for copies of their prosecution and conviction notices. The director says she only received the last of those documents on 15 December 2020.

36 The respondents oppose leave being given on the basis that the appellant does not have an arguable case.

37 The December Affidavit does not say when the discussions occurred or when the documents were requested. This limits the probative value of the evidence. Nevertheless, the delay was only 24 days. If there is merit in the appeal, I would grant an extension of time.

38 In addition to supporting the application for an extension of time, the December Affidavit appears to seek to support the appeal on its merits. The appellant also lodged another affidavit sworn by its director on 21 May 2021 (May Affidavit) in support of the appeal.

39 The appellant simply filed the affidavits, and did not make an application to adduce evidence in the appeal.

40 Putting that irregularity to one side,[24] I have the power to admit this evidence under s 40(1)(e) of the Criminal Appeals Act.[25]

41 In the December Affidavit, the director asserts that, based on the fines imposed on the other two franchisees, she believes the Fine was excessive. The December Affidavit shows that:

1. CGI Investments was fined $7,000 and the Avoided Premiums Order was in the amount of $2,542.20. The offence occurred over a 15 month period. It involved 18 workers, so the maximum penalty was $450,000. The fine was 1.6% of the maximum, and 2.75 times greater than the Avoided Premiums amount.

2. Ruby Days was fined $5,500 and the Avoided Premiums Order was in the amount of $1,083.67. The offence occurred over a 4 month period. It involved 42 workers, so the maximum penalty was $1,050,000. The fine was 0.52% of the maximum, and 5 times greater than the Avoided Premiums amount.

42 The May Affidavit contains the transcript of the sentencing of CGI Investments. The director asserts it was a 'near-identical' matter.

43 The transcript shows that CGI Investments became aware of its failure to have workers' compensation insurance during an investigation by WorkCover. It cooperated with the investigation and arranged for insurance promptly. It pleaded guilty at the earliest reasonable opportunity.[26]

44 Counsel for CGI Investments was the same counsel who appeared for the appellant in this case. The plea in mitigation on behalf of CGI Investments was similar to the plea in the appellant's sentencing. It was submitted that the director of CGI Investments believed that the company had all the necessary insurance because her husband had been taking care of insurance. It was also submitted that, under the franchise agreement, the appellant was required to take out a suite of insurance policies from a nominated broker. It was submitted that a reasonable person would assume that this would include all necessary insurance. It was submitted that the franchisor and the broker ought to have alerted CGI Investments to the need for workers' compensation insurance. It was said that CGI Investments actually had inadvertently doubled up on some insurance. No one was injured during the uninsured period.[27] Counsel submitted that the penalty should be proportionate to the premiums avoided, noting this was only $2,542.20.[28]

45 The respondent points out that the evidence in the December and May Affidavits is 'new' evidence, not 'fresh evidence'. This distinction is of lesser significance in an appeal against a sentence.[29] The respondent also submits that the new evidence does not assist the appellant in demonstrating error by the learned Magistrate.

46 As I will later explain, the evidence is of limited weight. However, it is not irrelevant, and I will accept both affidavits into evidence.

47 After the hearing was adjourned to enable the parties to consider and file written submissions on the new ground 3, the appellant filed another affidavit sworn by its director.[30] Again, the appellant simply filed the affidavit, and did not make an application to adduce evidence in the appeal. This was despite the fact it had previously been drawn to the appellant's attention that affidavits ought not be filed in appeal proceedings without an application for leave to adduce evidence.[31]

48 The affidavit attaches the transcript of the hearing before Magistrate Tavener in these proceedings. The transcript of the hearing had already been filed in this court as part of the application for leave to appeal.

49 The affidavit also attaches the statements of material facts prepared by the State Solicitor's Office in relation to the three Boost Juice franchisee prosecutions. These may arguably be relevant, in showing what the factual basis on which each franchisee was sentenced.

50 The director asserts in the affidavit that the statements of material facts confirm that the penalty sought by the prosecutor in each case was the maximum penalty. This is not accurate and, in any event, would be irrelevant. As is customary, the statements of material facts set out the maximum penalty that applied to the offence, for the assistance of the court.

51 The statements of material facts may arguably be relevant. The contents of the affidavit are not. The transcript is already before the court. I will give leave to adduce the statements of material facts into evidence, and refuse leave in relation to the rest.

1. In relation to ground 1, was the Fine manifestly excessive?

2. In relation to ground 2, did the Fine infringe the totality principle?

1. did the magistrate have regard to the amount of the avoided premiums in assessing the seriousness of the offence?
2. if so, was this an error?

4. If any error is established, was there nevertheless no miscarriage of justice?

53 As the outcome of ground 3 may affect the assessment required by ground 1, I will begin with ground 3. Ground 3 alleges that the magistrate erred in law in having regard to the amount of the avoided premiums in assessing the seriousness of the offence.

Did the magistrate have regard to the amount of the avoided premiums?

54 The respondent submitted that, on a fair reading of the learned magistrate's reasons, his Honour did not take into account the amount of the avoided premiums in determining the seriousness of the offence.[32]

55 Even having regard to the nature of the work of magistrates, and the need to not scrutinize the reasons with a fine-tooth comb, I am satisfied that his Honour did take it into account. In my view, this conclusion is compelled by his Honour's reasons for distinguishing the fine imposed on CGI Investments. His Honour said that the fine imposed on CGI Investments 'was a relatively small fine of $7,000 but that was on a non-payment of approximately $2,000 insurance premiums'.[33]

56 Neither party was able to find any authorities which deal with the relevance of the amount of a mandatory repayment order in assessing the seriousness of an offence.

57 The respondent did, however, draw my attention to the fact that an offence against s 170(1) is a continuing offence. The respondent submitted that, for the purposes of the limitation period within which a prosecution must be commenced, time starts to run when the insurance is obtained.[34] The respondent submitted that, therefore, the prosecution notice could have alleged a failure to insure throughout the entire time the accused was uninsured, being 10 years. The conviction would then have related to an offending period which exceeded the five year period covered by the Avoided Premiums Order.

58 I am not persuaded that time does not start to run until the insurance is obtained.[35] However, it is unnecessary to reach a firm view. That is because the prosecution notice in this case did not allege that the offence occurred throughout the entire time. Instead, it alleged that the accused had failed to obtain insurance for the period of 30 June 2018 to 17 October 2019.

59 Accordingly, the period of offending for which the appellant was to be sentenced was a shorter period than the period covered by the Avoided Premiums Order.

60 In my view, the amount of premiums avoided during the period of offending will usually be a significant factor in the assessment of the seriousness of the offence. The legislation seeks to ensure that the taxpayer does not have to bear the costs of workplace injuries. The premiums are the cost of insuring against the risk of workplace injuries. It may be inferred that they reflect the extent of the exposure.

61 This inference cannot be drawn if the period covered by the offence is shorter than the period in which premiums were avoided. In such a case, the Avoided Premiums amount would be relevant only as part of the context and background.

62 As the period covered by the offence in this case was shorter than the period in which premiums were avoided, I consider the magistrate erred in taking into account the amount of the avoided premiums in determining the seriousness of the offence.

64 An assertion that a sentence is manifestly excessive is an assertion of implied error. To succeed, the appellant must demonstrate that the disposition is unreasonable or plainly unjust.[36]

A sentence must correspond to the seriousness of the offence

65 A sentence imposed on an offender must be commensurate with the seriousness of the offence.[37] The seriousness of an offence must be determined by taking into account:[38]

(a) the statutory penalty for the offence; and

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and

(c) any aggravating factors; and

(d) any mitigating factors.

66 If a court decides to fine an offender, the court must, as far as is practicable,[40] take into account the means of the offender and the extent to which payment of the fine will burden the offender. This is subject to the requirement that a sentence imposed on an offender must be commensurate with the seriousness of the offence.[41] This means that:[42]

whilst a court must take into account the means of an offender in considering the amount of any fine, that exercise should not result in a fine which is not commensurate with the seriousness of the offence. In some cases it may be necessary to impose a fine that is difficult for an offender to pay or even beyond the means of an offender, if a fine of any lesser amount would not be commensurate with the seriousness of the offence. This assumes that no other disposition is reasonably open.

However, the seriousness of an offence will rarely dictate the precise amount of an appropriate fine. There will usually be a range of fines that will be open to be imposed. It is in this context that the means of the offender and the extent of any burden on the offender will come into play. Where an offender is of very limited means and the burden of a fine would be very onerous, those factors will justify the imposition of a fine towards the lower end of the range that would be appropriate for an offence of the seriousness being dealt with by the court.

67 In having regard to the burden that a fine may impose on an offender, the court should not overlook the fact that a fine is a punishment and is intended to be a burden on the offender, to give effect to appropriate sentencing principles of punishment and general and personal deterrence.[43]

68 In Sgroi v R,[44] Malcolm CJ, with whom Rowland J agreed said:

The question whether the amount of a fine is within the range of a sound discretionary judgment is to be determined in the same manner as the same question when asked with respect to a sentence of imprisonment, save that in the case of a fine considerations of the offender's financial means or capacity are relevant in determining the amount of a fine which will constitute punishment proportionate to the gravity of the offence in the light of the circumstances under which it was committed, the antecedents of the offender and, where appropriate the objective of general deterrence.

Determining whether a sentence is manifestly excessive

69 In determining whether or not a sentence is manifestly excessive, the sentence should be examined having regard to the maximum penalty for the offence, sentences imposed in other cases for similar offences, the gravity of the criminal conduct on the scale of seriousness of offences of that type, and the personal circumstances of the offender.[45]

70 If there are no directly comparable cases, the court is not precluded from deciding that an individual sentence is manifestly excessive. It just means that there are no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentences are only ever one indicator in the assessment.[46]

71 In its written submissions, the appellant sought to rely upon the parity principle. This reflected a misunderstanding of the principle. The parity principle is aimed at ensuring appropriate consistency in the sentencing of 'co-offenders', reflecting the principle of equal justice. The precise limits of the term 'co-offenders' have not been defined, and the application of the principle is a matter of substance, not form.[47] Nevertheless, it would not capture the three franchisees in this case. That said, the principle of equal justice still requires consistency in the application of legal principles. If much more lenient sentences were imposed in other similar cases, those sentences may be among the yardsticks against which the Fine can be assessed.[48]

72 The maximum penalty for an offence under s 170(1) of the WCIM Act is a fine of $5,000 in respect of each worker employed during the offence period.[49] For a body corporate, the maximum is $25,000.[50]

73 As the appellant corporation engaged 25 workers during the offence period, the maximum penalty for the appellant's offence was $625,000.

74 The maximum penalty reflects the seriousness of offences against s 170(1). The requirement on employers to have insurance for workers' compensation claims ensures that, in the event of an employee being injured at work, compensation will be paid regardless of the employer's financial situation. Failure to have insurance undermines the system. It exposes the General Account to claims, at a cost to WorkCover and ultimately the State. General deterrence is plainly an important consideration in sentencing for these offences.

75 The 'maximum penalty, taken and balanced with all the other relevant factors, provides a yardstick against which to measure an appropriate sentence.'[51]

76 The sentence imposed can be measured against the maximum penalty by considering the percentage of the maximum it represents.[52]

78 The offence was not at the high end of the scale.

79 It was not a deliberate attempt to avoid paying insurance premiums. The director of the appellant assumed, as a result of the mandatory requirement to get insurance through a nominated broker, that all necessary insurance had been obtained.

80 The appellant operated in an industry that did not involve a high degree of risk to its workers. No one was actually injured during the period in which the appellant was uninsured.

81 However, nor was the offence at the low end of the scale. This is because of the duration of the offending (being 15 and a half months) and the number of employees involved.

82 Having regard to all of the above, the offence was at the low-medium range on the scale.

83 The appellant relied heavily on the sentences imposed on the other two Boost Juice franchisees.

84 The appellant was fined $35,000. The offence occurred over a 15½ month period. It involved 25 workers, so the maximum penalty was $625,000. The fine was 5.6% of the maximum.

85 CGI Investments involved a similar period of offending, of just over 15 months. It involved 18 workers. The fine was only 1.6% of the maximum.

86 Ruby Days involved a shorter period of offending, being just under five months. It involved more workers, being 42. The fine was a tiny fraction, 0.52%, of the maximum.

87 The appellant submitted that the disparity between the Fine imposed on the appellant compared to the fines imposed on the other two franchisees was 'unjustifiable and infringed the parity principle'.[53] The appellant submitted that, when viewed against the fines imposed on the other two franchisees, the Fine imposed on it was 'both manifestly excessive [and] infringes the totality principle'.[54]

89 First, it has been repeatedly stated that comparable cases do not dictate the sentencing range for an offence. The position was recently reiterated by the Court of Appeal in The State of Western Australia v Zhuang:[55]

The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

90 The consistency in sentencing that is sought is consistency in the application of the relevant legal principles.[56]

91 Sentences imposed in other cases are not binding precedents. The duty of the sentencer is to impose a sentence that is appropriate in all of the circumstances.[57]

92 Second, two cases cannot establish the range of sentences customarily imposed.[58]

93 Third, comparable cases come from appellate decisions, not from sentences passed at first instance.[59]

94 Fourth, where a court is satisfied that the outcome in a comparable case was manifestly excessive or inadequate, it need not have regard to that case in considering whether the sentence under appeal was manifestly excessive or inadequate.[60]

95 The fourth consideration alone requires the appellant's submissions to be rejected. In my view, the fines imposed on the other franchisees were manifestly inadequate. While there were a number of mitigating factors in each case, they did not justify the imposition of a penalty that was less than 2% of the maximum penalty. In my view, the fines did not properly reflect the seriousness of the offences.

96 The appellant pleaded guilty at the earliest reasonable opportunity. It has no criminal history.

97 The appellant cooperated with the investigation and obtained insurance promptly.

98 In the Magistrates Court proceedings, the appellant did not adduce any evidence of its means, nor the extent to which a fine would be a burden.

99 To prove the allegation of manifest excess, the appellant must establish that it was not open to the magistrate to impose the Fine. It is not for me to substitute the fine I would have imposed had I been sentencing the appellant for this offence.

100 In my view a fine which equated to only 5.6% of the maximum penalty was plainly within the range of an appropriate disposition. Indeed, on the material available to the magistrate, I consider it to have been lenient.

101 Accordingly, I am not satisfied it was not open to the magistrate to impose the Fine.

102 I would grant leave to appeal on this ground, but would dismiss this ground.

103 This ground was misconceived. The principle of totality has no operation in relation to a penalty for a single offence which will not have a cumulative effect on an existing penalty.

105 I have found ground 3 made out, but not grounds 1 and 2.

106 The respondent submits that the appeal should nevertheless be dismissed on the basis that there was no miscarriage of justice.

107 I am not satisfied that the error could not have made a difference. I must therefore consider the sentencing discretion afresh. If I would not impose a lesser penalty, then no substantial miscarriage of justice has occurred, and I may dismiss the appeal.

108 In order to determine the sentence I would impose if I was to exercise the sentencing discretion afresh, I need to know, so far as is practical, the appellant's means and the extent to which a fine would be a burden.

109 The appellant did not adduce any evidence as to its financial position before the magistrate, nor did it seek leave to do so in the appeal. Nevertheless, I considered it appropriate to alert the appellant to the relevance of its means and the extent to which a fine would be a burden to the sentencing exercise, and provide the appellant with the opportunity to adduce evidence of these matters if it wished to do so. Once I had done so, the appellant indicated that it did wish to adduce such evidence, and the respondent did not oppose leave being granted to enable this to occur. Accordingly, I gave the appellant leave to file any such evidence within 14 days. I also gave the respondent leave to file submissions in relation to that evidence, and gave the appellant leave to file responsive submissions.

110 The appellant filed an affidavit on 6 September 2021 sworn by its director. In that affidavit, the director acknowledged that the appellant had the capacity to pay the Fine that had been imposed. However, the director deposed to the additional financial pressure on the business, and the stress on her personally, caused by expansion plans recently implemented. The expansion was the creation of a second Boost Juice outlet. The appellant entered into a contract with the franchisor to enable it to create the second outlet in May 2021.

111 The director also attached some bank statements for July and August 2021 to her affidavit.

112 The director also said that she separated from her husband in February 2020, leaving her with the sole responsibility of supporting her children and mother.

113 The respondent filed brief submissions, pursuant to the orders I had made. The respondent noted that the affidavit did not provide any information which would allow the financial pressures to be quantified. The respondent submitted that, on one reading of the information provided, 'it is open for the Court to conclude that the appellant is a successful and expanding business'.[61]

114 The appellant then sought leave to file a further affidavit.[62] I gave leave.[63]

115 On 29 September 2021, the appellant filed another affidavit sworn by its director. That affidavit attached tax returns, financial statements and BAS statements for the last two and a half years.

116 On 21 October 2021, the appellant filed its 'responsive submissions'. These submissions went well beyond a response to the respondent's submissions and, therefore, well beyond the grant of leave. I have ignored those parts of the respondent's submissions that were filed without leave.[64] What remains, in effect, is:[65]

The appellant business is in the process of expanding. At paragraph 8 of its submissions filed on 10 September 2021, the respondent stated 'it is open for the Court to conclude that the appellant is a successful and expanding business'. It would be unfair for the appellant to be financially punished due to its own efforts, at considerable financial risk to itself, to grow its business.

117 This submission reflects a misunderstanding of the nature of the inquiry.

118 The learned magistrate imposed the Fine on 27 October 2020, well before the appellant chose to expand its business. The director separated from her husband well before the appellant chose to expand its business. This indicates that the appellant considered that, despite the director's separation from her husband, and despite the Fine, expanding the business was economically viable and desirable.

119 If I was to resentence the appellant, I would be entitled to have regard to events that have occurred since the magistrate imposed the Fine.[66] However, there is no evidence that the expansion of the business caused any unanticipated financial pressure or stress.

120 The appellant admits having the capacity to pay the Fine. From the affidavits filed by the appellant, I am satisfied that the appellant's financial position is such that a fine in the amount imposed by the magistrate would not be unduly onerous.

121 Although the magistrate erred in taking into account the amount of the avoided premiums in determining the seriousness of the offence, I am satisfied that there was no miscarriage of justice. If I was required to exercise the sentencing discretion afresh, I would not impose a lower fine than the fine imposed by the magistrate. A fine which equated to only 5.6% of the maximum penalty was lenient. The appellant's means, and the burden imposed by the Fine, do not warrant a more lenient fine.

122 Accordingly, I am satisfied that, despite the error, there was no miscarriage of justice. In the circumstances, I would dismiss the appeal.

123 Although I would dismiss the appeal, there was merit in ground 3. I will grant an extension of time. I grant leave to appeal in relation to ground 3, refuse leave to appeal in relation to grounds 1 and 2, and dismiss the appeal.

124 The respondent has foreshadowed seeking his costs if the appeal is dismissed. I will hear from the parties in relation to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] This is defined to mean the Workers' Compensation and Injury Management General Account established under the WCIM Act - see s 5.

[2] This section reproduces or draws on my reasons in other judgments.

[3] Criminal Appeals Act, s 9(1).

[4] Criminal Appeals Act, s 9(2).

[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[6] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].

[8] Ninyette v Holmes [2015] WASC 287 [56(3)]. And see Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139 [117].

[9] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette [59] ‑ [65]; Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].

[10] Criminal Appeals Act, s 14(2).

[11] Crocker v Vinicombe [2019] WASC 416; (2019) 279 A Crim R 529 [42] ‑ [60].

[12] See s 14 of the Criminal Appeals Act; Ninyette [65]; Crocker [42] ‑ [60]. See also, in the context of part 3 appeals, the cases cited in the next footnote.

[13] See Crocker [42] ‑ [60]. See also, in the context of part 3 appeals, Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42] (errors that do not affect the exercise of the sentencer's discretion do not vitiate the exercise of the sentencer's discretion), Harding v The State of Western Australia [2015] WASCA 27 [73] (an express error which is not material to the exercise of the sentencing discretion, that is, one that did not affect or was incapable of affecting the sentence imposed, is not an error of the type described in House v The King [1936] HCA 40; (1936) 55 CLR 499) and Jacomb v The State of Western Australia [2021] WASCA 81 [94] (if there is a House v The King error, the court does not assess whether the error influenced the outcome).

[14] This was the example given in Kentwell [42].

[15] It is unnecessary to consider what the court can and should do if it decides a greater sentence should have been imposed. As to this, see Kentwell [43] and RO v R [2019] NSWCCA 183 [84] - [89].

[16] Unpaginated document titled 'Application for Extension of Time Application for Leave to Appeal against Sentence and Appeal' filed 21 May 2021 (Appellant's Submissions) page 2.

[19] Transcript of Magistrates Court hearing 19 October 2020 (Plea hearing) pages 2 - 5.

[23] Transcript of Magistrates Court hearing 27 October 2020 (Sentencing hearing) page 2.

[24] See Willenberg v Downey [2015] WASC 282 [22] (Pritchard J, as her Honour then was).

[25] See also Wheeler v The Queen [No 2] [2010] WASCA 105 [52] ‑ [53] (Owen JA).

[26] May Affidavit annexure KL 1 page 14.

[27] May Affidavit annexure KL 1 pages 5 - 8.

[28] May Affidavit annexure KL 1 page 8.

[29] Wheeler [53] (Owen JA). See also Tsang v Francis [2021] WASCA 131 [73] - [93].

[30] Affidavit of Thi Kim Dung Le filed 16 July 2021.

[31] See ts 8. As to the requirement to file an application, see Willenberg [22] (Pritchard J, as her Honour then was).

[32] Respondent's Outline of Supplementary Submissions filed 16 July 2021 (Respondent's Ground 3 Submissions) [36].

[34] See the Respondent's Ground 3 Submissions [20] - [27]. The respondent referred to Hunter v City of Joondalup [2015] WASC 444 [25] (Corboy J) citing R v Industrial Appeals Court; Ex parte Barelli's Bakeries Pty Ltd [1965] VicRp 79; [1965] VR 615, 620 (O'Bryan and Gillard JJ).

[35] See, for example, Joseph v Worthington [2018] VSCA 102; (2018) 272 A Crim R 292 [94] - [95] (Osborn JA) and Marks v R [1937] HCA 21; (1937) 57 CLR 58, 66 (Latham CJ), 67 (Dixon J, as his Honour then was).

[36] Gaskell [127(1)] (Mazza and Beech JJA).

[37] Section 6(1) of the Sentencing Act 1995 (WA).

[38] Section 6(2) of the Sentencing Act.

[39] This section reproduces or draws upon what I wrote in Snowball v McDonald [2019] WASC 108.

[40] A court may fine an offender even though it has been unable to find out about these matters - s 53(2) of the Sentencing Act.

[41] Section 53(1) of the Sentencing Act. See also Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586 [25] ‑ [26].

[43] Al Hussein v Commissioner for Consumer Protection [2014] WASC 296 [16].

[44] Sgroi v R (1989) 40 A Crim R 197, 201.

[45] Gaskell [127(2)] (Mazza and Beech JJA).

[46] See, in the context of manifest inadequacy and the totality principle, The State of Western Australia v Zhuang [2021] WASCA 56 [112] - [113].

[47] Green v R [2011] HCA 49; (2011) 244 CLR 462 [29] - [30]; Castrilli v Western Australia [2019] WASC 135 [54] - [55].

[48] This is discussed further in the next section.

[50] Section 40(5) of the Sentencing Act.

[51] Ayton v City of Armadale [2020] WASCA 39 [61].

[52] See, as examples, Ayton [64] and Trinder v Anderson (Unreported, WASC, Library No 960216, 24 April 1996). See also Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5 [129], [187] and [191] (primarily in the context of comparing outcomes in other cases - see [120] - [124], [171] - [187]).

[54] Appellant's Submissions [22]. See also the Appellant's Outline of Submissions on New Ground of Appeal filed 20 July 2021 [15] - [18].

[56] Director of the Public Prosecutions of the State of Victoria v Dagliesh (A Pseudonym) [2017] HCA 41; (2017) 262 CLR 428 [49] (Kiefel CJ, Bell and Keane JJ).

[57] Dagliesh [83] (Gageler and Gordon JJ).

[60] Dagliesh [50] - [52] (Kiefel CJ, Bell and Keane JJ), quoting R v Pham [2015] HCA 39; (2015) 256 CLR 550, 560 [29] (French CJ, Keane and Nettle JJ).

[61] Respondent's Outline of Supplementary Submissions filed 10 September 2021 [8].

[62] By letter dated 23 September 2021.

[63] In orders of 4 October 2021, made after the appellant confirmed there had been conferral.

[64] These are paragraphs 4 - 5, 8 - 11, 42 - 45.

[65] Appellant's Outline of Responsive Submissions filed 21 October 2021 [12].

[66] Criminal Appeals Act, s 41(4)(a).