Balla v Jason Aaron Nominees Pty Ltd
[2019] WASC 161
•16 MAY 2019
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 way of answers to questions) and production of any records or other documents, that he or she considers necessary or desirable to ascertain ‑
(i)whether any Act to which his or her powers extend, or any requirement made under that Act, is being or has been complied with;
(ii)whether any order, condition, restriction, or limitation is being or has been observed.
By s 20(2) a person must not without reasonable excuse, and subject to s 15,[1] fail to comply with a request under section 14(d). The penalty for breach for a body corporate is $250,000. The same penalty is prescribed for obstructing an inspector, or giving false or misleading information in response to a request under s 14(d).
[1] Which provides for incriminating statements, by making inadmissible statements made after objection.
The facts and procedural history
The prosecution notice was lodged on 31 August 2017.
The respondent was also charged with carrying on business as an electrical contractor without a licence, between 29 August 2014 and 6 November 2014, contrary to reg 33(1) of the Electricity (Licensing) Regulations 1991 (WA). The respondent was convicted of that offence on 14 June 2018, after trial, and fined $8,000, with costs of $7,237.90.
The charge relevant to this appeal was heard on 19 July 2018, at the same time as two charges of the same nature against Pascoe Electrical Contracting Pty Ltd. The two companies had a common director, and apparently carried on a single electrical contracting business.
The prosecutor read the following facts to the Court:
…since 2013, Energy Safety have undertaken investigations into these two companies and their compliance with the Electricity Licensing Regulations. As part of those investigations, inspectors from Energy Safety sought to compel documents from both accused to understand their operational activities, to corroborate information already obtained in the course of that investigation. The documents were also sought … to understand the relationship between the two companies in circumstances where the details of both accused has been identified as part of investigations into a single electrical contracting business.
Turning to the charge against Jason Aaron Nominees, on 22 August 2016, two Energy Safety inspectors delivered a letter to the solicitor for the accused requesting documents pursuant to section 14, subsection (d) of the Energy Coordination Act. A director of Jason Aaron Nominees had previously informed the relevant inspector that any information required by Energy Safety should be requested through the accused's solicitor.
That letter requested the accused produce the documents on 5 September 2016 at its registered company address and place of business, which I will refer to as its premises, or, alternatively, to contact the inspector by telephone to make other arrangements. On 5 September 2016, inspectors attended the accused's premises. Neither of the two directors of the accused was present. None of the requested documents were produced.
While the inspectors were at the accused's premises, a director of the accused spoke to one inspector by telephone and said that the information was not available for Energy Safety to view. On 9 September 2016, the inspectors delivered a further letter to the solicitor for the accused granting an extension of time to produce the requested documents to 19 September 2016 at the accused's premises or, again, to contact the inspector to make alternative arrangements.
The accused did that, rescheduling the appointment to 20 September 2016 at 23/60 Royal Street in East Perth. Inspectors attended on that date, and the accused did not produce any of the documents that had been requested. The accused ‑ a director of the accused said that no further documents would be provided, and to date, none of the requested documents have been produced.[2]
[2] Sentencing ts, 4-5.
The letter of request was tendered. Relevantly, it stated that the inspector was investigating an alleged breach by the respondent of the Electricity (Licensing) Regulations (WA), for carrying on business or holding itself out as an electrical contractor without a licence, and requested documents relating to the business over the period 7 November 2014 to 18 August 2016.
The respondent has previous convictions:
(1)two convictions under reg 34(4) of the Gas Standards (Gasfitting and Consumer Gas Installations) Regulations 1999 (WA) for failing to make records available for inspection by inspectors;
(2)four convictions under s 20(2) of the Energy Coordination Act for failing to comply with requests made by inspectors under s 14(d); and
(3) a conviction under s 20(3) of the Energy Coordination Act for giving false or misleading information in response to a request for information made by an inspector;
(4)a conviction under reg 33(1) of the Electricity (Licensing) Regulations for carrying on a business as an electrical contractor without a licence between 12 February 2014 and 11 April 2014; and
(5)the conviction on 14 June 2108 under reg 33(1) of the Electricity (Licensing) Regulations, which is referred to above.
In mitigation, the respondent pointed out that the offences for which Pascoe Electrical Contracting and the respondent were convicted related to the same documents. The respondent otherwise submitted that it took its safety obligations seriously. The company ensured that it had qualified electricians doing the work, with notices of completion submitted and certificates of safety filled out. Counsel for the respondent further submitted before the magistrate that 'these matters were tied up in the investigation and there seems to be some reluctance there …from the companies to comply because of the charge of carrying on without a licence'.[3]
[3] Sentencing ts, 12.
The respondent did not inform the magistrate about its means or the likely burden of a financial penalty.
The sentencing comments
In very brief sentencing remarks, the magistrate made these observations:
(1)a fine was the only sentencing option;
(2)the respondent had pleaded guilty, although it was a late plea;
(3)the charge was serious, with a prescribed penalty of a fine up to $250,000;
(4)the regulation of the provision of electrical services is serious for public safety and companies carrying out electrical services need to comply with the regulating authority in relation to their investigations;
(5)the respondent had prior convictions for failing to provide information after similar requests;
(6)the court has to consider deterrence ‑ specific deterrence and also general deterrence ‑ 'so that other companies know that these regulations to provide information need to be complied with and failure to comply with such requests will be met with serious penalties'.[4]
[4] Sentencing ts, 14.
The ground of appeal
The notice of appeal was lodged on 14 August 2018, with three grounds of appeal. On 7 September 2018, the appellant filed amended grounds. The appellant now relies on a single ground, although, in its particulars, it rolls up several allegations of error:
The learned Magistrate imposed a sentence that was inadequate in all the circumstances, and not commensurate with the seriousness of the offence as required by s 6(1) of the Sentencing Act 1995.
Particulars
1.The learned Magistrate failed to properly determine the seriousness of the offence by failing to take into account two matters which constituted aggravating factors:
(a)The two aggravating factors were that:
(i)the Respondent's failure to comply with the request made of it under s 14(d) of the Energy Coordination Act 1994 was calculated and deliberate; and
(ii)the Respondent was aware that the request was made in the context of an investigation into its alleged breach of r 33(1) of the Electricity (Licensing) Regulations 1991, and knew or should have known that its failure to comply with the request would hamper the investigation into its regulatory compliance.
(b)The Appellant brought the two aggravating factors to the learned Magistrate's attention in the course of the sentencing submissions.
(c)The Appellant established the aggravating factors beyond a reasonable doubt, both by way of the statement of material facts (which facts were not disputed by the Respondent) and the documents handed up to the learned Magistrate.
(d)The learned Magistrate was required, by s 6(2)(c) [of the Sentencing Act], to take into account the two aggravating factors in sentencing the Respondent.
2.Notwithstanding particular (1), the learned Magistrate found, correctly with respect, that the Respondent's offending was serious.
3.The Respondent had four prior convictions for the same offence.
4.The fine imposed was only 1.2% of the maximum penalty available.
5.In light of particulars (2) and (3) the fine imposed did not reflect the significant need for general and personal deterrence.
The contention that the sentence imposed was inadequate and not commensurate with the seriousness of the offence asserts implied error. That is, in all the circumstances, the sentence imposed was not one open in the exercise of a sound sentencing discretion. It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.
The contention that the sentencing magistrate failed to take aggravating factors into account alleges a more specific error, even if it must be inferred from the failure to mention the particular factor.
Principles of sentencing
Section 6 of the Sentencing Act 1995 (WA) sets out the principles of sentencing. Relevantly:
(1)A sentence imposed on an offender must be commensurate with the seriousness of the offence.
(2)The seriousness of an offence must be determined by taking into account ‑
(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.
An aggravating factor is one which, in the court's opinion, increases the culpability of the offender.[5] In general terms the identification of aggravating and mitigating factors is to be made in accordance with the statutory provisions creating the relevant offence and with the principles of the common law.[6] The appellant characterises two of the relevant circumstances as aggravating factors: that the contravention was deliberate; and that the respondent was aware the documents were sought to assist in an investigation into a breach of regulations and knew or ought to have known that failure to comply would hamper the investigation.
[5] Sentencing Act s 7.
[6] Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 [39].
By s 53(1) of the Sentencing Act, in deciding the amount of a fine, the court must 'as far as is practical' take into account the means of the offender and the extent to which the payment of the fine will burden the offender. A court may fine an offender even though it has been unable to find out about the matters in subsection (1).[7]
[7] Sentencing Act s 53(2).
Consideration
Having regard to the penalty prescribed, the fine imposed was modest ‑ 1.2% of the maximum. But an appeal is for the correction of error. A lenient sentence is not necessarily an error. Nor is it enough in a sentencing appeal that the appellate court would have exercised its discretion in a different manner.
I accept the appellant's submission that culpability of the respondent was increased because the non-compliance was deliberate. The appellant submitted that the offence hampered the investigation of the respondent's conduct of his business. There was no direct evidence of the effect on the investigation, although it was not in issue that the documents were not produced then or later.
The appellant submitted, correctly, that the sentencing magistrate did not refer to these aggravating factors in sentencing remarks. In such brief remarks, however, I would not necessarily infer anything from that omission
Overall, for the appellant to succeed, it needs to show that the sentence is manifestly inadequate. The principles to be applied are well established. The allegation that a sentence is manifestly inadequate asserts the existence of an implied error. In R v Pham, French CJ, Keane and Nettle JJ said:
Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.[8]
[8] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28]; Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [26].
In determining whether a sentence is manifestly inadequate, the court must examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender. Where there are no directly comparable cases (there are none here), the appellate court is not precluded from deciding that an individual sentence is manifestly inadequate.[9]
[9] See, for example, R v Abbas [2019] WASCA 64 [55] - [57].
The same principles apply where the sentence under consideration is a fine rather than imprisonment. In Sgroi v The Queen, Malcolm CJ said:
The purpose of a fine is primarily to punish the offender. Consequently, the amount of the fine must be such as will constitute an appropriate punishment having regard to the offender's capacity to pay. Thus, the amount and method of payment of the fine will need to take into account, as far as practicable, the financial resources and income of the offender and the nature of the burden that its payment will impose.
…
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 and 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 of capacity are relevant in determining the amount of a fine which will constitute a 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.[10]
[10] Sgroi v The Queen (1989) 40 A Crim R 197, 200-201.
The Energy Coordination Act, in s 20, provides for a fine of $250,000.
The circumstances of the offending were serious. The offence, by its terms, is committed when the failure to comply is without reasonable excuse. The request under s 14(d) was made in the context of the respondent being investigated for repeated breaches of licensing requirements. The letter of request specified clearly what documents were required. The respondent was given two weeks to comply and then an extension of time, so the deliberate failure to comply was over a long period. During that period, the respondent apparently had access to and received advice.[11]
[11] Sentencing ts, 13.
The sentencing magistrate had no information before him regarding the respondent's capacity to pay. It cannot be inferred, on his Honour's sentencing remarks, that the amount of the fine was affected by consideration of the respondent's means, or by consideration of the total financial burden of the fines and costs in both prosecutions.
The respondent submitted in mitigation that it gave other documents to the inspector and 'believed that that would be the end of the matter and that he had shown that he was complying'.[12] That, with respect, does not mitigate the failure to produce the documents requested.
[12] Sentencing ts, 12.
The respondent submitted on appeal that 'having regard to all of the circumstances of the case, particularly the investigation and prosecution in respect of which the offence occurred, the offence fell towards the lower end of the spectrum' and that 'a more serious category of case might be where the failure to provide the information in question had prevented or thwarted the institution of proceedings or critically hampered a prosecution which was unsuccessful'.[13] That submission overlooked that the documents requested were for a period outside the period for which the respondent was successfully prosecuted.
[13] Respondent's written submissions [14].
The respondent submitted that the penalty should be compared with the penalties prescribed under other legislation for failure to provide information, referring to the offences under Criminal Investigation Act 2006 (WA), s 61 (failure to obey a data access order) and s 153 (failure to comply with an order given by an officer under the Act). In each case the prescribed penalty includes a fine less than the fine under s 20 of the Energy Coordination Act, but also includes imprisonment. I do not accept that it is relevant to compare the penalty prescribed by Parliament in the legislation regulating a particular industry, with the penalties prescribed for other offences under other legislation.
The respondent submitted that the penalty in s 20 for a corporation should be considered by reference to the range of corporations that could be subject to the Act ‑ from large public companies to small businesses which have incorporated for the purpose of trading. The respondent's submissions on appeal described it as 'at the very lower end of the corporate spectrum'.[14]
[14] Respondent's written submissions [11].
In my opinion, the sentencing court should have regard to the size and nature of the business as one of the relevant factors in considering a pecuniary penalty. The evidence regarding that issue was inadequate, both before the magistrate and on appeal. In the submissions before the sentencing magistrate, the respondent was described by the prosecution as 'a high profile company which advertises for electrical contracting services throughout the Perth metropolitan area'.[15]
[15] Sentencing ts, 8.
At the hearing of the appeal the respondent tendered the 2015 and 2016 tax returns for the Arunasalom Family Trust. In each year the trust reported income of less than $2 million, and a loss which was carried forward.
The relationship between the trust and the respondent is not clear. Neither tax return shows the means of the respondent to pay a fine at the time the fine was imposed. But taking the returns as an indication of the size of the business at about the time of the offence, it was a small business. The documents requested, but not produced, may have shown more.
The respondent submitted that the costs it was ordered to pay, and the fine and costs ordered in the prosecution for carrying on business without a licence, are relevant. There is support in the authorities for the proposition that a sentencing judicial officer should have regard to the totality of the financial burden, including costs, suffered by an offender as a result of the offence.[16] Accordingly, the penalty imposed for the offence of carrying on business without a licence may be relevant in looking at the overall financial burden and the capacity of the respondent to pay a fine.
[16] Lewkowski v Lilley [1999] WASCA 1041; Flatow v Mullins (Unreported, WASC, Library No 5207, 1 February 1984) (Smith J), 3. And see Pannacchione v City of Rockingham [2014] WASC 221; Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5.
The offences were, however, quite distinct in kind; there were no overlapping factual elements; and they were committed nearly two years apart.
By analogy with the process in imposing a sentence of imprisonment, the court should determine the fine appropriate to the offence, after taking into account the aggravating and mitigating factors. It may then be appropriate to adjust the penalty imposed having regard to the earlier sentence and the total burden on the respondent, the offender's capacity, and the mitigatory effect of any plea. This approach is consistent with that put forward by McKechnie J in Al Hussein v Commissioner for Consumer Protection.[17] There should be some discount in the sentence for the plea of guilty, although it was entered late, and in circumstances where it is difficult to see what defence could have been made.
[17] Al Hussein v Commissioner for Consumer Protection [2014] WASC 296 [14] ‑ [15].
The respondent had previously committed similar offences. It is not an aggravating factor that a previous sentence has not achieved the purpose for which it was imposed. But I accept the appellant's contention that a fine should act as a financial disincentive to further offending. The respondent's record of similar offending emphasises the need for personal deterrence.[18]
[18] Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5 [168], [187].
Conclusion
In the present case, even if the fine is considered together with the fine imposed earlier, having regard to the seriousness of the offending and the penalties prescribed for the offences, a total of $11,000 is extremely lenient for the overall offending. The respondent is a small business, but the offending is serious.
When all matters are taken into consideration, I am satisfied that the sentence of $3,000 is so inadequate that there must have been a misapplication of principle.
Assuming that there is a residual discretion to not interfere with the sentence in an appeal under pt 2, div 2 of the Criminal Appeals Act 2004 (WA), notwithstanding error, no basis has been shown for the exercise of that discretion. It was not suggested, nor could it be, that the appeal should be dismissed under s 14(2) of the Criminal Appeals Act 2004 (WA).
I will proceed to hear the respondent regarding its means, and resentence.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson14 MAY 2019
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