Balla v Jason Aaron Nominees Pty Ltd - [2019] WASC 161

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BALLA -v- JASON AARON NOMINEES PTY LTD [2019] WASC 161
CORAM:   ALLANSON J
HEARD:   9 MAY 2019
DELIVERED          :   16 MAY 2019
FILE NO/S:   SJA 1104 of 2018
BETWEEN:   NADIA BALLA
Appellant
AND
JASON AARON NOMINEES PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE T HALL
File Number             :   PE 54271/2017

Catchwords:

Criminal law - Sentencing - Fine - Where respondent failed to comply with request for information - Where offence deliberate - Where respondent had previous convictions for same conduct - Where statutory penalty of $250,000 - Whether fine of $3,000 manifestly inadequate

Criminal law - Sentencing - Fine - Where different penalty for corporation or individual - Where offender a small business

Criminal law - Sentencing - Fine - Where respondent had earlier been convicted and fined for separate offence - Whether earlier penalty and costs relevant as part of total financial burden on offender

Legislation:

Criminal Appeals Act 2004 (WA), s 14
Criminal Investigations Act 2006 (WA), s 61, s 153
Electricity (Licensing) Regulations 1991 (WA), reg 33
Electricity Act 1945 (WA)
Energy Coordination Act 1994 (WA), s 12, s 14, s 20
Gas Standards (Gas Fitting and Consumer Gas Installations) Regulations 1999 (WA), reg 34
Gas Standards Act 1972 (WA)
Sentencing Act 1995 (WA), s 7, s 53, s 56

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	S Keighery
Respondent	:	M R Gunning & T Percy QC

Solicitors:

Appellant	:	State Solicitor for Western Australia
Respondent	:	Gunning Young

Case(s) referred to in decision(s):

Al Hussein v Commissioner for Consumer Protection [2014] WASC 296
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Flatow v Mullins (Unreported, WASC, Library No 5207, 1 February 1984)
Lewkowski v Lilley [1999] WASCA 1041
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
Pannacchione v City of Rockingham [2014] WASC 221
R v Abbas [2019] WASCA 64
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5
Sgroi v The Queen (1989) 40 A Crim R 197

ALLANSON J:

The respondent was convicted on one charge of failing to comply with a request of an inspector made under s 14(d) of the Energy Coordination Act 1994 (WA), contrary to s 20(2) of the Act. The date of the offence was 20 September 2016.
The respondent was fined $3,000, with costs of $1,744.35.
The appellant seeks leave to appeal the leniency of that sentence.

The legislation

The Energy Coordination Act provides, in s 12(1) for persons to be designated inspectors under the Act, the Electricity Act 1945 (WA), or the Gas Standards Act 1972 (WA) or all or any of those Acts.
Powers conferred on inspectors under s 14 of the Energy Coordination Act include the power in s 14(d) to:
… request any information (including by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASC 161
Decision Date: 16 MAY 2019

CaseChat Overview and Summary

The case of Balla v Jason Aaron Nominees Pty Ltd involved a dispute regarding the adequacy of a fine imposed on a respondent who had failed to comply with a request for information, committed an offence deliberately, and had prior convictions for similar conduct. The statutory penalty for the offence was $250,000, and the respondent, a small business, was fined $3,000. The case was heard in the court of appeal where the primary concern was whether the imposed fine was manifestly inadequate. Additionally, the court examined whether the earlier penalty and associated costs for a separate offence should be considered when assessing the total financial burden on the offender.

The central legal issues before the court were whether the fine of $3,000 was manifestly inadequate given the statutory penalty and the respondent's previous convictions, and whether the prior penalty and costs for a separate offence should be taken into account when determining the total financial burden on the respondent. The court was required to balance the statutory maximum penalty with the circumstances of the case, including the respondent's previous convictions and the nature of the current offence.

The court found that the fine of $3,000 was manifestly inadequate, considering the statutory penalty of $250,000 and the respondent's deliberate nature of the offence. The court highlighted the respondent's previous convictions for similar conduct, which indicated a pattern of non-compliance and deliberate action. Furthermore, the court determined that the earlier penalty and costs for a separate offence should be considered as part of the total financial burden on the offender. This comprehensive assessment led the court to conclude that the imposed fine was inadequate and warranted an appeal. The appeal was allowed, and leave to appeal was granted.

Orders

Orders of the court

Leave to appeal granted

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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