Bembridge v Just Spectacles Pty Ltd [2006] WASC 185 (S)
[2006] WASC 185 (S)
•19/10/2006
BEMBRIDGE -v- JUST SPECTACLES PTY LTD [2006] WASC 185 (S) [2006] WASC 185 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 185 (S) | |
| 19/10/2006 | |||
| Case No: | SJA:1013/2006 | 10 AUGUST 2006 | |
| Coram: | MURRAY J | 25/08/06 | |
| 23/10/06 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Fine of $5000 imposed | ||
| B | |||
| PDF Version |
| Parties: | KARIN HOPE BEMBRIDGE JUST SPECTACLES PTY LTD |
Catchwords: | Criminal law and procedure False and misleading advertising Poster displayed in shopping mall Penalty to be imposed Turns on own facts |
Legislation: | Nil |
Case References: | Nil Australian Competition and Consumer Commission v Chubb Security Australia Pty Limited [2004] FCA 1750 Australian Competition and Consumer Commission v Nissan Motor Company (Australia) Pty Ltd & Anor (1998) ATPR 41-660 Bembridge v Just Spectacles Pty Ltd [2006] WASC 185 Ducret v Colourshot Pty Ltd & Anor (1981) 35 ALR 503 Harvey v Robertson [1999] WASCA 120 Mill v The Queen (1988) 166 CLR 59 Peat Resources of Australia Pty Ltd v City of Cockburn [2002] WASCA 342 Pieri v The Queen [2001] WASCA 357 Postiglione v The Queen (1997) 189 CLR 295 R v Faithfull [2004] 142 A Crim R 554 Shaw v The Queen (1989) 39 A Crim R 343 West Coast Property Investment Pty Ltd v Department of Consumer and Employment Protection [2006] WASC 110 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 23 OCTOBER 2006 FILE NO/S : SJA 1013 of 2006 BETWEEN : KARIN HOPE BEMBRIDGE
- Applicant
AND
JUST SPECTACLES PTY LTD
Respondent
Catchwords:
Criminal law and procedure - False and misleading advertising - Poster displayed in shopping mall - Penalty to be imposed - Turns on own facts
Legislation:
Nil
Result:
Fine of $5000 imposed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr N J Mullany
Respondent : Mr P G Clifford
Solicitors:
Applicant : Ms N Durr
Respondent : Tottle Partners
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Australian Competition and Consumer Commission v Chubb Security Australia Pty Limited [2004] FCA 1750
Australian Competition and Consumer Commission v Nissan Motor Company (Australia) Pty Ltd & Anor (1998) ATPR 41-660
Bembridge v Just Spectacles Pty Ltd [2006] WASC 185
Ducret v Colourshot Pty Ltd & Anor (1981) 35 ALR 503
Harvey v Robertson [1999] WASCA 120
Mill v The Queen (1988) 166 CLR 59
Peat Resources of Australia Pty Ltd v City of Cockburn [2002] WASCA 342
Pieri v The Queen [2001] WASCA 357
Postiglione v The Queen (1997) 189 CLR 295
R v Faithfull [2004] 142 A Crim R 554
Shaw v The Queen (1989) 39 A Crim R 343
West Coast Property Investment Pty Ltd v Department of Consumer and Employment Protection [2006] WASC 110
(Page 3)
1 MURRAY J: These reasons should be read with my judgment delivered on 25 August 2006, published as [2006] WASC 185. The appeal was by the complainant against the acquittal of the respondent of the offence of false or misleading advertising, contrary to s 12(1) and s 69 of the Fair Trading Act 1987 (WA).
2 The appeal concerned a poster displayed by the respondent in a shopping mall. When I allowed the appeal, I set aside the judgment of acquittal entered in the Magistrates' Court at Perth and recorded a judgment of conviction. I reserved the question of penalty and what orders should be made in relation to the costs of trial, but I ordered the respondent to pay the appellant's costs of the appeal to be taxed. As to the question of penalty, I determined that that and, if necessary, the question of costs of the trial should be dealt with upon the basis of written submissions. I have received such submissions from both parties.
3 The parties have agreed that the question of sentence should not be remitted to the Magistrates' Court, but that I should exercise that power pursuant to the Criminal Appeals Act 2004 (WA), s 14(1)(d). In passing, I note that my power to make an order as to the costs of the proceedings in the court of summary jurisdiction is provided in s 14(1)(h).
4 The prosecution the subject of this appeal was one of 136 complaints. The respondent was convicted of 135 offences of breaches of s 12(1) of the Fair Trading Act. They related to radio advertisements. 103 of them were in respect of advertisements broadcast on the radio station 6PR between 1 February 2004 and 21 February 2004. The remaining 32 offences related to advertisements broadcast by radio station 6IX between 1 February and 20 February 2004. The advertisements were identical and they covered the same period of time. The learned Magistrate, I am told, imposed a global fine of $9975 pursuant to the Sentencing Act 1995 (WA), s 54, as I understand it upon the basis that those offences formed a series of offences of the same kind. Under s 54(2), such a fine must not be more than the sum of the fines provided by the statutory penalties for each of the offences.
5 Section 12 of the Fair Trading Act provides no penalty expressly for its breach. The penalty is provided by s 69(1). The contravention of s 12 is constituted as a crime for which the summary conviction penalty is a fine of $6000. So far as a corporate offender is concerned, the parties are of the view, and I proceed upon the basis, that s 40 of the Sentencing Act applies. Under that section, where the offender is a body corporate the Court may impose no sentence or impose a fine. A fine may only be
(Page 4)
- imposed if the Court is satisfied that it is not appropriate to impose no sentence. Under s 40(5), a body corporate convicted of an offence, the statutory penalty for which is a fine, is liable to a fine of five times the maximum fine that could be imposed on a natural person convicted of the same offence. Therefore, the maximum penalty said to be available in this case upon summary conviction is a fine of $30,000.
6 The respondent submits that no penalty should be imposed, in essence, because the offence in relation to the poster was committed in the course of an ongoing advertising campaign of which the radio advertisements were also a part. I note in that respect that the offence in relation to the poster was committed between 29 February and 20 May 2004, following the period covered by the radio advertisements. It is submitted that the global penalty imposed by the Magistrate represented a considered judgment about the culpability of the respondent's conduct, of which the poster offence should be seen to be merely one part.
7 If I were to accede to those arguments, I would apply s 46 of the Sentencing Act, which permits a court to impose no sentence if it considers that the circumstances of the offence are trivial or technical and, having regard to particular matters concerned with the nature of the offender or otherwise, the Court considers it would be unjust to impose a sentence. In my opinion, this is not a case of that kind, if for no other reason than that I consider that the circumstances of the offence are not trivial or technical.
8 I take the view that although all the offences committed, those relating to radio advertisements as well as that in relation to the poster, were of the same kind, the offence in relation to the poster was a different form of commission of the offence which, subject to the overall limit on the power to fine imposed by s 69(3) of the Fair Trading Act in relation to offences of the same character committed at about the same time, merits separate punishment.
9 It is trite to observe that the fine should be commensurate with the seriousness of the offence. As to that, while the circumstances of the commission of the offence displayed no particular aggravating circumstances, it was an offence committed over an extended period of time, targeting shoppers already at the shopping centre, as opposed to listeners to 6PR and 6IX. On the other hand, one can imagine more serious breaches of s 12 and the respondent has no prior record of such offences. Of course, it is a corporate body and the offence was committed as part of an advertising campaign for commercial gain.
(Page 5)
10 In my view, there should be some reasonable parity between the penalty imposed by the learned Magistrate for the two groups of radio advertisements, the fine of $9975, and the fine to be imposed for the poster offence. I impose a fine of $5000, making an aggregate of just under $15,000, within the context of the overall maximum penalty available, having regard to s 69(3), of a fine of $30,000. In my opinion, the additional fine of $5000 need not be further reduced on grounds of totality, having regard to the commercial context in which the offences were committed. I make no particular order for the enforcement of payment, leaving that to the operation of the general law.
11 I have mentioned that, as I was asked to do when substantive orders were made on 25 August, I reserved not only question of penalty but also the orders to be made in respect of the costs of trial. The appellant seeks an order that the respondent should pay the costs of trial to be taxed if not agreed. That is the order I made in respect of the costs of appeal. I see no reason why the costs of trial should not be awarded to the appellant. I therefore make the order sought that the respondent shall pay the appellant's costs of trial to be taxed if not agreed.
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