C E Oates & Sons Pty Ltd T/as Narrogin Retravision v Balla - [2015] WASC 144

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: C E OATES & SONS PTY LTD T/AS NARROGIN RETRAVISION -v- BALLA [2015] WASC 144

CORAM: KENNETH MARTIN J

HEARD: 2 APRIL 2015

DELIVERED : 24 APRIL 2015

FILE NO/S: SJA 1019 of 2015

BETWEEN: C E OATES & SONS PTY LTD T/AS NARROGIN RETRAVISION
Appellant
AND
NADIA BALLA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T R WATT
File No  :NG 49 of 2015

Catchwords:

Criminal law - Sentencing - Electrical contractor convicted of breaching regulations - Whether fine imposed manifestly excessive - Underlying considerations

Legislation:

Electricity (Licensing) Regulations 1991 (WA), reg 52
Electricity Act 1945 (WA)

Result:

Leave to appeal granted for ground 3
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms M G Saraceni
Respondent: Mr D J Anderson

Solicitors:

Appellant: NECA Legal (WA) Pty Ltd
Respondent: State Solicitor for Western Australia

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

Abraham v The State of Western Australia [2014] WASCA 151
Al Hussein v Commissioner for Consumer Protection [2014] WASC 296
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hill v The State of Western Australia [2014] WASCA 150
Koenig v Alizadeh [2002] WASCA 267
Koenig v Ryan [2001] WASCA 339
Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Nembousse v The State of Western Australia [2015] WASCA 68
Pavlitsas v Rowe [2013] WASC 233
Prout v La Rosa [2007] WASC 160
Rossi v The State of Western Australia [2014] WASCA 189
Rowsell v The State of Western Australia [2015] WASCA 2
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sgroi v The Queen (1989) 40 A Crim R 197
Sinclair v The State of Western Australia [2014] WASCA 22
The State of Western Australia v BLM [2009] WASCA 88
Wade v The Queen [2001] WASCA 252
Wilson v The State of Western Australia [2010] WASCA 82
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

KENNETH MARTIN J: This is an application for leave to appeal against sentence. On 5 February 2015, the appellant, CE Oates & Sons Pty Ltd trading as Narrogin Retravision (Narrogin Retravision), was sentenced in the Magistrates Court at Narrogin to a fine of $68,000 for an offence under the Electricity (Licensing) Regulations 1991 (WA), and also ordered to pay $719.30 in costs. Narrogin Retravision now seeks leave to appeal against that sentence on the ground that the sentence was manifestly excessive.

Proceedings in the Magistrates Court

On 23 January 2015, Narrogin Retravision, through Ms Jacqui Early, a director of Narrogin Retravision, endorsed a written plea of guilty to the charge that on 4 February 2013, being an electrical contractor, it had sent a notice of completion, No 2215507, to the relevant network operator in respect of notifiable work that had not been completed, contrary to reg 52(3) and reg 65 of the Electricity (Licensing) Regulations 1991 (WA) made under the Electricity Act 1945 (WA). The notifiable work had occurred at a commercial premises at 34 Fairway Street in Narrogin.
A conviction was recorded by Magistrate Watt during a hearing on 3 February 2015 in the Magistrates Court at Narrogin. Sentencing submissions were made that day. On request from the learned magistrate, Narrogin Retravision and the respondent both provided further written submissions. They were received prior to the ultimate sentencing, on 5 February 2015.

Statutory framework for the offence and penalty

Offence

Regulation 52 of the Electricity (Licensing) Regulations provides, relevantly:
52. Notifiable work, notice of completion of to be given to network operator
(1)Subject to subregulation (2) and (2AA), an electrical contractor who carries out any notifiable work, or causes any notifiable work to be carried out, commits an offence unless, within the period of 3 days after the completion of the notifiable work, a notice of completion, in a form approved by the Director and duly completed, is prepared by the electrical contractor in respect of the notifiable work and delivered to the relevant network operator.
…
(2a)A notice of completion is to contain a declaration, signed or executed by the electrical contractor who prepared the notice of completion, that the notifiable work to which the notice applies has been checked and tested and is safe and complies with these regulations.
(3)An electrical contractor who delivers a notice of completion to the relevant network operator in respect of notifiable work that has not been completed in accordance with regulations 49 and 49B commits an offence.
(4)For the purposes of subregulations (1) and (1a), notifiable work is taken to be completed if the electrical installation on which the work was carried out ‑
(a)is in use; or
(b)is connected to distribution works or a private generating plant or can be connected to distribution works or a private generating plant without the use of tools; or
(c)is ready for connection to distribution works or a private generating plant.
…
It was accepted that the Narrogin Retravision was an 'electrical contractor' under the Electricity (Licensing) Regulations. Regulation 3 defines that term as:
a person who carries on business as an electrician but does not include an electrician when acting in the capacity of an employee of an electrical contractor.
It was also accepted that a Mr Hanson had been the company's 'nominee' for the electrical contractor licence held by Narrogin Retravision. A nominee, as defined in reg 3, is a person who, in relation to a licence under pt 4 of the Electricity (Licensing) Regulations, is nominated for the purposes of reg 36(1), (2) or (3) or reg 37(1) in respect of that licence.
Regulation 36(3) provides that an electrical contractor's licence may be issued to a body corporate if: (a) a person in its employ nominated by it meets the requirements specified in reg 36(1) and (b) the Electrical Licensing Board is satisfied that at least one of the natural persons concerned in the management or conduct of the body corporate understands fully the duties and obligations referred to in reg 36(1)(b). Those duties and obligation relate, inter alia, to whether the person is appropriately licenced, has relevant vocational experience and training, is properly insured, and is able, to the satisfaction of the Electrical Licensing Board, to understand the requirements imposed on electricians and electrical contractors by the Electricity Act, by regulations made under that Act, and by other relevant statutes and regulations.
It was not alleged that Mr Hanson failed to meet the relevant criteria under s 36(1), or that there was anything irregular about the electrical contractor's licence held by Narrogin Retravision, or Mr Hanson's capacity to act as a nominee in respect of that licence.
Regulation 3 defines 'notifiable work':
notifiable work means electrical installing work other than ‑
(a)maintenance work, unless that work requires the disconnection and reconnection of the supply of electricity to the electrical installation concerned or the replacement of service apparatus; or
(b)the alteration of a final sub-circuit; or
(c)the addition of a single final sub‑circuit.
Regulation 3 defines 'electrical installing work' as 'electrical work that consists of assembling and fixing in place, altering or adding to any electrical installation or maintaining, removing, or, connecting to fixed wiring, any electrical equipment'.
Regulation 4A, read together with reg 3, defines 'electrical work' to mean work on electrical machines or instruments, on an electrical installation, or on electrical appliances or equipment, to which electricity is supplied or intended to be supplied at a nominal pressure exceeding 50 volts alternating current or 120 volts ripple free direct current, as well as work comprising an assessment of an electrical installation to ensure that the installation and any work done on the installation complies with the requirements of these regulations. Regulation 4A(2)(a) provides that, for the purposes of the definition of 'electrical work', it is immaterial whether or not the thing on or in relation to which the work is performed is part of, or is connected to or to be connected to, any distribution works or private generating plant.
Regulation 49 and reg 49B deal with the standards required for electrical work. Regulation 49 provides, relevantly:
49. Electrical work, requirements for
(1)Subject to subregulations (2B) and (2), a person shall carry out electrical work in accordance with the requirements of ‑
(a)the Australian/New Zealand Wiring Rules as amended from time to time;
(b)the WA Electrical Requirements as amended from time to time; and
(c)the standards specified in Schedule 2 as amended from time to time.
…
(3)A person who employs an electrical worker shall not cause or permit the electrical worker to carry out electrical work contrary to this regulation.
Regulation 49B provides:
49B. Electrical work to be carried out to safe standard and completed to trade finish
(1)To the extent practicable and reasonable, a person is to ensure that when electrical work has been carried out by him or her ‑
(a)the thing on which the work was performed is safe to use; and
(b)the work has been completed to a trade finish.
(2)Subregulation (1)(a) is taken to be complied with if the electrical work has been carried out in accordance with the requirements referred to in regulation 49(1).
Regulation 52A deals with the delivery of a notice of completion for notifiable work completed and delivered under reg 52. Regulation 52A(3) provides that, where a notice of completion is delivered by fax to the relevant network operator, the notice is to 'be regarded as having been signed or executed by the electrical contractor if the electrical contractor's name appears in the appropriate place in the notice'.
Regulation 54(1) prescribes, in effect, the persons who may sign a notice of completion for the purposes of reg 52:
Where a notice of completion that is delivered under regulation 52 in respect of electrical installing work is signed by a person other than ‑
(a)the electrical contractor concerned; or
(b)a nominee in respect of the licence held by the electrical contractor concerned; or
(c)the nominee under regulation 37(1); or
(d)the person carrying out the work approved by the Board under regulation 33(2)(a),
the person who signed the notice commits an offence and the notice shall be deemed not to have been duly completed.
It was accepted that Western Power was the 'relevant network operator' for the purposes of delivering a notice of completion under reg 52.

Penalty

Regulation 65 of the Electricity (Licensing) Regulations provides:
65. General offence and penalty
(1)A person who fails to do anything that person is required to do under these regulations or does anything that that person is prohibited from doing under these regulations commits an offence.
(2)Unless otherwise provided, a person who commits an offence under these regulations is liable to ‑
(a)for an individual, a fine of $50 000; or
(b)for a body corporate, a fine of $250 000.

The facts and circumstances of the offence

It appears there was little dispute about the material facts underlying the offence, aside from one or two minor issues, such as the date on which the notice of completion was sent to the network operator and the nature of the premises and its use by the public.
The facts and circumstances for the offence were described by the learned magistrate in her sentencing remarks on 5 February 2015:
[E]ffectively, on 4 February 2013, the accused submitted a notice of completion, as I said, number 2215507 to Western Power in relation to notifiable work that had been completed at 34 Fairway Street in Narrogin, which I now understand was [a] commercial premises belonging to the Narrogin Repertory Club. The electrical work included the installation and connection of a three-phase consumer mains cable from the mains connection box to the relocated remote meter, the repositioning of an internal switchboard, which was the main switchboard and a connection of the final sub-circuits and associated protective devices, the installation and fitting off of socket outlets, lighting fittings and a three-phase socket outlet and an air conditioning unit.
A notice of completion was sent by the accused, as I said, on 4 February 2013, certifying that the work was completed in accordance with the Electricity (Licensing) Regulations 1991. I note, and it has been conceded through written submissions by counsel for the accused, that the certificate was faxed to Western Power on 4 February 2013, although the certificate which is now in evidence was signed by Mr Hanson, an employee of the accused company, that the work was actually completed on 20 February 2012 [sic, December], some 46 days earlier.
Although the building was not open to the public between 20 December 2012 and 15 February 2013 there was attendance by the Narrogin Repertory Club personnel, although I understand from submissions from the prosecution that that was limited. However, the work involving the repositioning … or re‑location of the metallic remote meter enclosure was such that it was accessible by any member of the public, including children, because there was no fence surrounding premises.
And that's in evidence by photograph received yesterday in submissions and I'm noting that as exhibit 1. On February 2013 a routine inspection conducted by Western Power identified that the re-located meter enclosure had not been earthed, contrary to the Australian and New Zealand Wiring Rules clause 1.5.3 and 5.4.1.1. Notably, the electricity supply was connected at the time of the installation. And that's effectively a summary of the facts in relation to this matter on which I'm sentencing.
As I said, there was a plea of guilty by the accused company and the plea of guilty was entered at the earliest opportunity, although I note the State case in this matter was very strong. I'm crediting 20 per cent discount for the early plea in relation to this matter. The accused operates a business, Retravision, and has done so since about 1980. They hold an electrical contractors licence and employ six staff.
Mr Hanson has been the warehouse manager for approximately 14 years. I'm told he is the nominee ‑ well, I was told about 14 years in submissions. He is nominee for the EC licence and primarily performs the electrical work, having been a tradesperson for 35 years. Generally, the work includes installation and repair of domestic appliances, with some commercial work being undertaken. Mr Hanson, when questioned, I'm told by counsel for the accused ‑ and it's not opposed by the prosecution ‑ admitted that he, in carrying out the work for the accused had failed to earth the meter box and that it was an oversight on his behalf.
Although Mr Hanson signed the certificate on 20 December 2012 the accused failed to submit it until 4 February 2013, some 46 days later. In written submissions I note that were received from Mr Snedker [counsel for Narrogin Retravision], he talks about the general practice being that the accused would fax the or send the certificate of completion the day that it had been signed off. But there is no evidence of that and given that fact the accused is accepting that it was done on 4 February (ts 22-23).

Proceedings before the Magistrates Court

It is clear from the learned magistrate's sentencing remarks (see ts 22 ‑ 26) that she largely accepted the submissions made by the prosecutor. Those submissions were given orally at the hearing on 3 February 2015 and by further written materials provided to the court - at the request of her Honour during the hearing on 3 February 2015 ‑ on 4 February (prosecutor) and 5 February (Narrogin Retravision) 2015, prior to sentencing.
Submissions for Narrogin Retravision, both orally and in the written materials, focused on the circumstances of that corporation, particularly in relation to its business structure, capacity to pay a fine and its responsive remedial actions after the offence occurred, including to its management procedures for electrical works. Narrogin Retravision submitted little about the circumstances of the offence, except to clarify the date the notice of completion was sent.
Relevantly, it was fully accepted on behalf of Narrogin Retravision that Mr Hanson had failed to earth the meter box and that this was an oversight on his behalf (ts 10). It was then said:
[t]he directors of the company are certainly very remorseful that this oversight has occurred, and they understand the seriousness of the offence and the risk of harm that may have occurred as a result of the electrical work not having been completed satisfactorily. They are certainly grateful that no such harm did result…the directors are in no way trying to shirk the company's responsibilities and they fully understand the company's obligations and responsibilities as an EC [electrical contractor] licence holder. The directors of the company take the company's role very seriously, and this incident has prompted them to review the company's practices and procedures, and led them to make improvements to the business in an attempt to ensure that this set of circumstances leading to this event does not reoccur (ts 10).
The potential ramifications of a failure to properly 'earth' an electrical appliance ‑ or, in this case, a 'meter box' can be significant. The earthing process was explained in the reasons of Hasluck J in Koenig v Ryan [2001] WASCA 339 at [28] - [30] as follows:
Counsel said that appliances in a home are earthed, so that in the event of a fault the electrical current will run to earth in its attempt to get back to its source. This system works well unless a person in the house makes a better connection to the earth and the home's earthing system. For example, a person touching the tap in a bath may make a better connection to earth than the earthing system. As a result of this problem, a multiple earth neutral (MEN) connection is made between the earthing system in a house and the neutral phase of the electrical system in the house (the neutral phase being that which carries electrical current back to the transformer after its passage through a home).
In the event of a fault, the electrical current runs through the earthing system to the MEN connection, as this offers the path of least resistance back to the transformer. The MEN connection also assists in tripping the circuit breaker which cuts off the supply of electricity to a home in the event of fault.
In summary, a MEN connection removes the risk of a person making a better connection to earth than the earthing system in the event of a fault and, more importantly, cuts off the electrical supply, which an earthing system alone will not do. …
In her sentencing remarks, the learned magistrate referred to several considerations that, broadly speaking, could be described as mitigating factors towards penalty. These considerations had been put to her Honour by Narrogin Retravision under its oral and written submissions. First, it was accepted that the directors of the company were remorseful and well understood the risk of harm created by the failure to properly earth the meter (ts 23 ‑ 24). Second, the magistrate referred to the actions Narrogin Retravision had subsequently taken in reviewing and revising their electrical goods installation practices and procedures after the offence (ts 24). Those actions were said to include Narrogin Retravision: deciding only to take on work that was within the nominee's (ie Mr Hanson's) experience level and resources; becoming a member of the National Electrical and Communications Authority (NECA) and consulting with NECA as it undertook to develop an occupational health and safety plan; and implementing a checklist that the company's employees must carry out once electrical work has been completed (ts 24). Third, it was accepted that Narrogin Retravision had responded quickly when alerted of the deficiency (ts 24 ‑ 25). Fourth, the learned magistrate took into evidence two financial statements tendered by Narrogin Retravision (ts 25). Her Honour observed that Narrogin Retravision had submitted those financial statements in mitigation and that Narrogin Retravision 'says that due to the company being a small family-run business the company is operating at low profit margins and has a limited financial capacity' (ts 25). Finally, it was noted that Narrogin Retravision had no record of previous offences (ts 25).

The learned magistrate recorded that the appellant had entered an early plea of guilty. Accordingly she said she proposed to provide a discount of 20% on the penalty that would otherwise be imposed (ts 25).
The learned magistrate then remarked on the need to balance any mitigating factors against a number of other factors. Her Honour said:
Firstly, the seriousness of the offence. The penalty provision identifies the penalty as a fine of up to $250,000 pursuant to regulation 52 subsection (3) of the Electricity (Licensing) Regulations 1991. That in itself reflects the seriousness of the offence that is before the court. The electrical contractor carrying notifiable electrical installation work is required to submit a notice of completion. This is, I accept, analogous to a guarantee made by the electrical contractor that the work was done to the required standard and that testing has taken place, ensuring its safe connection to the electricity supplier.
The notice of completion signed by Mr Hanson stated that the notifiable work had been checked, tested, was safe and complied with the regulations, by the nature of him signing that document. However, the testing and checking by Western Power found the work to be defective, unsafe and dangerous, due to the failure to earth the relocated meter enclosure. Had this site not been selected for inspection there was a very real possibility of injury and even fatality through electrocution, particularly given that the building was to be used for a commercial purpose, exposing more people to the hazard and that the work was not fenced, exposing the general public, including children, to the hazard, as they were, in any event, for the 46 day delay period the accused took in faxing the certificate to Western Power.
Therefore, the public nature of the work in the sense that it being in a public space, or accessible to the public, and the delay in submitting the certificate and, therefore, having the possibility of the work checked and corrected are aggravating features of this offence, which cannot be said then to be at the lower end of the scale of seriousness.
Secondly, on balancing the aspect of general deterrence, so important and potentially dangerous is the work carried out by electrical contractors, requiring considerable expertise in order to detect faulty work or defective work, general deterrence in this type of offending must be a significant aspect to the sentencing exercise.
Thirdly, specific deterrence. I accept that this is more limited in this sentencing exercise, given the new awareness of the accused to the danger of the work carried out and the responsibility that follows and the steps that have been taken to ensure that the nominee completes the work as the check lists have been provided in evidence and that there is now new procedures in place with the hope of ensuring that will occur in the future (ts 25 ‑ 26).
The learned magistrate concluded that the appropriate penalty to be imposed in respect of the offence was a fine of $68,000. Costs were also ordered in the sum of $719.30.

Grounds of appeal

In the appeal notice filed 5 March 2015, the appellant advanced only one ground of appeal, which was that the sentence imposed was manifestly excessive. No particulars of this ground of appeal were provided in the appeal notice. This was unsatisfactory and unhelpful to the court.
Section 8(1)(a)(iii) of the Criminal Appeals Act 2004 (WA) provides, for appeals to a single judge of this court, an appeal may be made on the ground that the court of summary jurisdiction imposed a sentence that was inadequate or excessive. However, that ground of appeal as expressed in the appeal notice does not satisfy Criminal Procedure Rules 2005 (WA) r 65(2), which provides:
The grounds of appeal must not merely allege ‑
…
(d)in the case of an appeal against a sentence, that the sentence is excessive or inadequate
By their written submissions dated 1 April 2015, Narrogin Retravision alleged the learned magistrate erred in the following respects.
1.The learned magistrate erred in applying only a 20% discount to the 'head sentence' in circumstances where a 'reduction of 25% of the maximum penalty should have been used in recognition of the early guilty plea entered at the very first opportunity' (par 24).
2.There were no aggravating factors that the learned magistrate ought to have taken into account on sentencing (par 32). Specifically, it was suggested that her Honour erred in wrongly taking into account, in effect, the following circumstances as aggravating factors for the offence:
(a)a 46‑day delay in submitting the notice of completion;
(b)the nature and public accessibility of the premises;
(c)the risk of harm presented by the non-compliant electrical work.
Narrogin Retravision submitted that these circumstances were not relevant considerations for the purposes of sentencing and that they were not 'aggravating as [they] did not increase the [a]ppellant's culpability for the offence charged'. Further, it was said that these circumstances 'did not form part of the offence charged'.
3.The learned magistrate gave insufficient weight to the mitigating factors including as regards the circumstances of Narrogin Retravision and its capacity to pay (par 37 ‑ par 41).
4.The ultimate sentence (fine) imposed was 'disproportionate to previous sentences for contravention of section [sic] 52(3)' of the Electricity (Licensing) Regulations (par 43).
As an annexure to its written submissions (filed 1 April 2015) on this application, Narrogin Retravision included a 'Table of Prosecution History' for reg 52(3) offences. This information was said to be sourced from EnergySafety Bulletins for a reporting period from January 2013 to December 2014.
At the hearing of the appeal, counsel for the respondent submitted that certain of the errors alleged by the appellant appeared to be allegations of express errors made by the learned magistrate, rather than of being implied or inferred errors. It was submitted that allegations of express error should properly be expressed as distinct grounds of appeal.
This submission must be accepted. As I will explain, the first of the two errors contended for by Narrogin Retravision under its written submissions allege, in my view, what are in effect, express errors of law. Leave to amend the grounds of appeal is required to add the first two alleged errors as distinct grounds of appeal. The respondent did not actively oppose leave. Accordingly, I have allowed the appellant leave to amend its grounds of appeal by way of supplementations in those terms. Section 40(1)(k) of the Criminal Appeals Act provides that, for the purposes of dealing with an appeal, an appeal court may amend or add a ground of appeal.
I have taken the third and fourth mentioned errors as are alleged by the appellant under its written submissions, to constitute particulars to the original ground of appeal ‑ then solely alleging that the sentence was manifestly excessive ‑ though they were not expressed as such in either the appeal notice, or by the written submissions.

Leave to appeal

Section 9(1) of the Criminal Appeals Act 2004 (WA) stipulates that leave is required to advance a ground of appeal in an appeal of this kind. Section 9(2) provides that the court 'must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding'.
In Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, the Court of Appeal considered the operation of s 9(2). As to the proper construction of s 9(2), the court said:
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success [56].

Ground 1 ‑ insufficient discount given for guilty plea

Narrogin Retravision submitted that the learned magistrate erred in discounting the fine imposed by only 20% by way of expressed recognition of the early plea of guilty, when a reduction of at least 25%, it argued, should have been applied. The asserted basis for that submission was s 9AA(4) of the Sentencing Act.
Broadly, s 9AA allows a sentencing judicial officer to reduce a sentence if the offender enters a plea of guilty. The sentencing court retains a discretion in deciding upon the discount to be given in each case: Abraham v The State of Western Australia[2014] WASCA 151 [62] (Buss JA) and Rowsell v The State of Western Australia [2015] WASCA 2 [44] ‑ [45] (McLure P & Newnes JA). Section 9AA has been held to apply to fines ‑ see Al Hussein v Commissioner for Consumer Protection [2014] WASC 296 [14] (McKechnie J).
There was no explicit reference to s 9AA under the magistrate's sentencing remarks. However, its application by the learned magistrate may be inferred from her remarks, particularly her conjoint reference to a 'discount' in terms of both numerical percentage (ie 20%) and an early plea of guilty.
Where a reduction is made under s 9AA in recognition of a plea of guilty, the court is required to state that fact and the extent of the reduction in open court: s 9AA(5). It was not disputed that the requirements of s 9AA(5) were not met.
The allegation that a court has afforded what is an insufficient discount under s 9AA in recognition of an early plea of guilty, would generally be taken to allege an implied error: see Rossi v The State of Western Australia [2014] WASCA 189 [80] (McLure P, Mazza JA and Hall JA agreeing). In Rossi, McLure P observed that the appellant in that matter had 'availed himself of the opportunity to challenge the discount for the guilty pleas as "manifestly inadequate", an allegation of implied error. The well‑known principles and approach to implied errors apply to this aspect of the appellant's challenge' [80].
Here, however, as I understand the appellant's submissions, the alleged error is that the learned magistrate had misconstrued s 9AA(4), by deciding to allow a discount of only 20% in recognition of the early plea of guilty by Narrogin Retravision. It is said, then, that by a proper construction of s 9AA(4), the learned magistrate ought to have allowed at least a discount against penalty of 25%.
As regards a sentence of imprisonment, a mere ground of appeal that contended error by only allowing a deduction of 20% under s 9AA of the Sentencing Act as manifestly inadequate would generally lack merit, regardless of whether the alleged error was understood as an implied error, or to involve an express error of some kind. As observed by McLure P and Newnes JA in Rowsell, as regards a reduction of a sentence of imprisonment under s 9AA:
The amount of the deduction was a matter of discretion and it is therefore necessary to demonstrate error in the exercise of the discretion in accordance with the principles in House vThe King [1936] HCA 40; (1936) 55 CLR 499. No error has been identified. While the appellant pleaded guilty at the first reasonable opportunity, it does not follow that, as his submissions suggest, he was entitled to the maximum deduction of 25%. The amount of the deduction will always depend upon the particular circumstances of the case [45].
The same principles would seem to apply equally here, although the sentencing disposition here was by way of a fine. I conclude that the allowed reduction of 20% under s 9AA as expressed, was within the range of a sound exercise of the learned magistrate's discretion.
However, if the alleged error in this ground of appeal is to taken to be an express error, then I would equally, still conclude that the challenge lacks any ultimate merit, for reasons I will explain below.
Section 9AA provides:
9AA. Plea of guilty, sentence may be reduced in case of
(1)In this section ‑
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if ‑
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) ‑
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
As can be seen, it is only s 9AA(4) that displays any reference to a reduction of any numerical percentage, and that is by reference to 'by more than 25%' in s 9AA(4)(a) and to 'by 25%' in s 9AA(4)(b).
However, s 9AA(4) would appear, from the force of its included expression, 'fixed term', to apply only to a sentence imposing a term of imprisonment. Section 9AA(1) provides that 'fixed term' has the meaning given in s 85(1). Section 85(1) defines 'fixed term' to mean a 'term that is not life imprisonment'. Section 85(1) further provides that a 'term' means a 'term of imprisonment imposed on an offender by a court as a sentence, whether a fixed term or life imprisonment'.
Given such applicable definitions for 'term' and 'fixed term', it is difficult to see how a court, in exercising a discretionary power as is provided by s 9AA(2) to impose a fine, could be in any way compelled, by operation of s 9AA(4), to reduce the level of the fine he or she would have otherwise imposed by 25% or, indeed, by any fixed numerical percentage.
The term 'head sentence' is not referred to elsewhere in the Sentencing Act (or anywhere in the Sentence Administration Act2003 (WA)). The definition for 'head sentence' in s 9AA(1), and its deployment in other subsections in s 9AA, does not appear to limit its application to terms of imprisonment - in other words, it would appear open for the term 'head sentence' to also apply to a fine.
The appellant also submitted that, in considering the mitigating effect of an early plea of guilty, that it was not relevant to consider the strength of the State's case.
By her sentencing remarks, the learned magistrate said:
[T]here was a plea of guilty by the accused company and the plea of guilty was entered at the earliest opportunity, although I note the State case in this matter was very strong. I'm crediting 20 per cent discount for the early plea in relation to this matter (ts 23).
This submission also has no merit in my assessment. The strength of the State case is clearly relevant to a determination under s 9AA(2), towards the degree of reduction in a sentence, if any, a sentencing judicial officer may apply. Section 9AA(2) provides that the power to reduce a sentence under s 9AA is in order to recognise the benefits to the State.
In regards to what the benefits to the State as indicated under s 9AA(2) might be, in Beins v The State of Western Australia [No 2] [2014] WASCA 54, McLure P said, as regards the effect of s 9AA(2):
It is of benefit to the State to secure the conviction of people who offend against the criminal law. The strength of the State case is directly relevant to the prospect of securing a conviction. The stronger the case, the greater the prospect of securing a conviction absent a plea of guilty. The strength of the State case also has the potential to impact on the time and expense required by the State in the preparation and conduct of its case at trial. As a general rule, the stronger the State case the smaller the benefit to the State in the extent of the savings [58].
This ground of appeal has no reasonable prospect of succeeding and, accordingly, I would refuse leave to appeal upon this ground.

Ground 2 ‑ asserted erroneous aggravating factors

Legal principles

Section 6(2) of the Sentencing Act provides that the seriousness of an offence must be determined by taking into account any 'aggravating factors', which s 7(1) defines as 'factors which, in the court's opinion, increase the culpability of the offender'.
Aside from the limited guidance provided in s 7, the identification of aggravating factors is to be made in accordance with the statutory provisions creating the relevant offence and the relevant common law principles: see Longbottom v TheState of Western Australia [2008] WASCA 203; (2008) 38 WAR 396 [39] (Wheeler JA) and Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26 [22] (Buss JA).

Disposition

The appellant's submissions concerning this ground of appeal seem to contend the magistrate's findings as to a 46‑delay in delivering the notice of completion and the defective, unsafe and dangerous nature of the works - ought to be characterised as, in effect, uncharged acts under the Electricity (Licensing) Regulations, rather than as being potentially aggravating factors in respect of the offence as charged, namely reg 52(3).
As to the first possibility, the appellant submitted that reg 52(1) creates a distinct offence applicable to punishing delay in delivering a notice of completion to the relevant network operator after notifiable work was completed, and that reg 52B creates offences relating to the preparation and delivery of electrical safety certificates in relation to electrical installing work.
As to the second possibility, the question is whether the circumstances of the 46‑day delay and the defective, unsafe and dangerous nature of the work over that period, could properly be understood as aggravating factors for the purposes of sentencing.
It is sometimes difficult to determine, for the purposes of sentencing, where to draw a line as between a permissible consideration of circumstances surrounding the commission of an offence, and an impermissible punishment for an offence that is not charged. See Wade v The Queen [2001] WASCA 252 [53] (McKechnie J) and Langdon v Kelemete‑Leoli‑McLean [95] (Mazza JA). Such questions are matters of degree and are to be reached on the facts of the individual presenting case.
As I explain, there is no great difficulty determining where to draw that line here.
The elements of the reg 52(3) offence to which the appellant entered a plea of guilty included (i) notifiable work that was not completed in accordance with reg 49 and reg 49B of the Electricity (Licensing) Regulations, and (ii) the delivery of a notice of completion to the relevant network operator in respect of that notifiable work.
In respect of the non‑compliant nature of the notifiable work, the learned magistrate found ‑ and it was not disputed by the appellant ‑ that a routine inspection conducted by Western Power in February 2013 had identified that the relocated meter enclosure had not been earthed, contrary to the Australian and New Zealand Wiring Rules cl 1.5.3 and cl 5.4.1.1. Her Honour also found, as a surrounding circumstance, that the electricity supply was connected at the time of the installation.
As regards the delivery of the notice of completion, the learned magistrate found that Mr Hanson completed the relevant electrical work on 20 December 2012. He also signed the notice of completion on that date. Then, it was common ground that the notice was not delivered until 4 February 2013. In total, 46 days had elapsed between the completion of the notifiable work (and the signing of the notice) and the delivery of the notice to the network operator. The reason for the delay in sending the notice of completion was never really explained - other than by way of oversight.

In my view, the learned magistrate did not err in mentioning as one consideration the 46‑day period, which she referred to as a 'delay', as an aggravating factor under s 7 of the Sentencing Act. This is for several reasons.
First, it was appropriate to regard the 46‑day period as a surrounding factual circumstance to the reg 52(3) offence. The underlying factual circumstances of the offence extended from at least the date when Mr Hanson signed the notice of completion - thereby giving, in effect, his 'guarantee' that the completed notifiable work complied with the standards and requirements referred to in reg 49 and reg 49B until the faxing of the document to Western Power.
In addition, it is evident from the sentencing remarks that her Honour did not have regard to the 46‑day 'delay' as a circumstance which, in and of itself, constituted a relevant contravention of the Electricity (Licensing) Regulations ‑ that is as a failure to comply with an administrative deadline for the submission of a document. An essentially administrative offence of that kind is, as the appellant submitted, created under the operation of reg 52(1). Here, the learned magistrate appears to have treated the 46‑day delay as a period of time in which a 'very real possibility of injury and even fatality through electrocution' existed.
Relevantly, her Honour found that that risk existed because Narrogin Retravision did not send a notice of completion to the network operator until 4 February 2013, even though the notifiable work had been completed on 20 December 2012. As a consequence, Western Power did not visit the premises to conduct any checking or testing, as part of a 'routine inspection' or otherwise, until sometime later in February 2013.
Allied to the learned magistrate's assessment of the 46‑day delay as a period of time in which a real risk of harm existed, was her Honour's expressed view that the risk of harm in that 46‑day period was relevantly greater, because of the 'public nature of the work'. In this regard, the learned magistrate appears to have accepted the prosecutor's submission, which was found in the written material provided to the magistrate on 4 February 2015, that:
I am further instructed that although there was little attendance at the premises, the position of the relocated metallic remote meter is such that it was accessible by any member of the public, including children, as there was no fence surrounding the premises.
That submission was not disputed by Narrogin Retravision, either in the written materials it provided to the magistrate in a letter dated 5 February 2015 or at the beginning of the hearing on 5 February 2015.
As regards the level of risk created by the non‑compliant work as undertaken by Mr Hanson, the appellant submitted that, while 'safety' was a relevant consideration for the purposes of sentencing for the reg 52(3) offence, it was not appropriate for the magistrate to have had regard to the 'risk of harm' that was posed by the defective, non-compliant nature of the work. It was said that to consider the risk of harm in the manner her Honour did, was to engage in irrelevant speculation about a 'potential hypothetical situation' (transcript of proceedings, 2 April 2015, ts 31).
That submission cannot be accepted. In a regulatory offence of this kind, assessments of the seriousness of the offence and the culpability of the offender necessarily require the sentencing judicial officer to have some regard to the underlying purposes of the applicable statutory regime. Having found that the electrical work was 'defective, unsafe and dangerous' and not in compliance with the requirements and standards specified in reg 49 and reg 49B, it was certainly appropriate for the learned magistrate to weigh up the risks of harm (ie the potential consequences) presented by a hazard of that kind ‑ see, for example, the discussion of the risk created by a defective earthing system, as discussed by Hasluck J in Koenig v Ryan [28] ‑ [30] in the passages earlier mentioned.
In Koenig v Alizadeh [2002] WASCA 267, Wheeler J dealt with an appeal relating to three counts of carrying out electrical work that was not in accordance with the Standards Association of Australia Wiring Rules, contrary to reg 49(1)(a) and reg 65 of the Electricity (Licensing) Regulations. Her Honour observed that it was not clear from the reasons for decision whether, in deciding to impose spent conviction orders in respect of the three charges, the magistrate
took account of the seriousness of the potential hazards involved in electrical work and the corresponding need to protect the public from those hazards, which the licensing scheme seeks to reflect [16].
Wheeler J went on to observe that the offences involved
were inherently serious ones and the community must be able to rely upon licensed electricians to comply with the prescribed standards of practice, when the potential consequences of not doing so may result in fatalities. This is why the protection provided by the legislative scheme exists [18].
Those comments regarding the underlying purpose of the applicable legislative regime were made, of course, in the context of her Honour's appellate review of the making of spent conviction orders in relation to those offences. Nonetheless, questions of public safety raised there are also relevant to an evaluation of the seriousness of an offence and the culpability of an offender when the delegated legislation in question relates to the licencing and competency of electrical workers and the regulation and standards for electrical work.
There can be little doubt that the overall legislative scheme as established by the Electricity Act and associated delegated legislation like the Electricity (Licensing) Regulations is complex and onerous. Regulation 49 provides, for example, that electrical work must be carried out in accordance with the requirements of three distinct regimes, the Australian/New Zealand Wiring Rules, the WA Electrical Requirements, and the standards specified in sch 2 of the Electricity (Licensing) Regulations. However, as Wheeler J observes, in the context of dealings with electricity, death may be a potential consequence of a non-compliance with those standards and requirements. Hence there is every reason, from a public safety protection perspective, to ensure that these protections are scrupulously adhered to.
Here, it could not be said that the objective gravity of this offence and the culpability of Narrogin Retravision relate only to circumstances surrounding the notice of completion and its delivery to the network operator, and to the mere technical extent of the work's non-compliance with the applicable standards and requirements identified in reg 49 and reg 49B. Rather, a sensible level of regard must be afforded to the surrounding context, including the (public) place where the work was situated, the (potentially fatal) hazards presented by defective work, and the risk of harm arising due to (eg) the location of the work and its accessibility to the public.
Accordingly, in my view, the learned magistrate did not err overall, by considering the broad circumstances relating to the nature of the premises where the work was installed and the underlying risks of harm presented by defective work as aggravating factors, under s 7 of the Sentencing Act.
This ground of appeal also holds no reasonable prospect of succeeding and, accordingly, I would refuse leave to appeal upon this ground.

Ground 3 - the fine was manifestly excessive

Legal principles

In Nembousse v The State of Western Australia [2015] WASCA 68 [14] ‑ [16], McLure P (Mazza JA agreeing) summarised the principles relating to a ground of appeal that a sentence was manifestly excessive:
This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.
In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect.
The general principles relating to appeals against sentence were also comprehensively explained by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2].
A ground of appeal that alleges a sentence is manifestly excessive asserts implied error in the sentence imposed: see Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [126] (Buss JA); Wilson v The State of Western Australia [2] (McLure P and Owen JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J). It does not assert a specific error: The State of Western Australia v BLM [2009] WASCA 88 (Buss JA) [106].
In Chan v The Queen (1989) 38 A Crim R 337, 342, Malcolm CJ observed that, to determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum penalty prescribed by law for the offence, the standards of sentencing customarily observed with respect to that type of offence, the place where the offending conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. The expression of principle in Chan was recently endorsed in Nembousse[15]. See also Hill v The State of Western Australia [2014] WASCA 150 [40] (judgment of the court) and Rowsell v The State of Western Australia [35] (McLure P and Newnes JA, Mazza JA agreeing).
So the essential question to be answered in relation to a ground of appeal that alleges that the fine imposed is manifestly excessive, is whether or not the fine of $68,000 fell within the range of a sound discretion, having regard to all of the factors that the learned magistrate was required to take into account. In Sgroi v The Queen (1989) 40 A Crim R 197, 200 ‑ 201, Malcolm CJ had said, as regards the imposition of a fine as a sentencing disposition:
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 practical, 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 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 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.
Although the decision in Sgroi predated the Sentencing Act, the principles there stated remain relevant: see Prout v La Rosa [2007] WASC 160 [14] (Blaxell J); Pavlitsas v Rowe [2013] WASC 233 [26] (Hall J); Al Hussein [12] (McKechnie J).

Insufficient weight given to mitigating factors

It was submitted by Narrogin Retravision that the learned magistrate afforded insufficient weight to the mitigating factors that her Honour made findings in relation to, particularly in relation to the individual circumstances of Narrogin Retravision and its capacity to pay.
Section 6(2) of the Sentencing Act provides that the seriousness of an offence must be determined by taking into account any 'mitigating factors', which s 8(1) defines as 'factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished'.
As regards capacity to pay and the circumstances of the offender in relation to a fine, s 53 of the Sentencing Act relevantly provides:
(1)Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account ‑
(a)the means of the offender; and
(b)the extent to which payment of the fine will burden the offender.
(2)A court may fine an offender even though it has been unable to find out about the matters in subsection (1).
As regards the imposition of a fine, the Sentencing Act must be read with the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (the Fines Act). Section 29(1) of the Fines Act provides that, except in the circumstances stated in s 29(1)(a) and (b) and s 29(2), pt 4 of that Act applies to any fine imposed by any court on any offender.
As none of the circumstances in s 29(1)(a) and (b) and s 29(2) relevantly apply here, pt 4 would appear to apply to the penalty imposed by the learned magistrate upon Narrogin Retravision.
Section 32(1), which is in pt 4 of the Fines Act, provides that when a fine is imposed, an offender must either pay the fine, or apply for a time to pay order in respect of the fine. The ability to apply for a time to pay order provides a mechanism to ameliorate the immediate effects of a heavy fine and is a factor relevant to sentence: see Al Hussein [11].
As to the factual findings the learned magistrate made regarding the financial circumstances of the appellant, her Honour had said:
The accused presents in mitigation two financial statements which I'm taking into evidence as exhibit 3A and B and says that due to the company being a small family run business the company is operating at low profit margins and has a limited financial capacity (ts 25).
The two financial documents as submitted by the appellant were only unaudited profit and loss statements for the limited periods, 1 July 2014 to 31 October 2014 and 1 July 2014 to 31 December 2014. With great respect, it is difficult to see how those limited materials could have been of any real utility to her Honour in reliably evaluating the financial circumstances of this corporate appellant.
The statements indicate, for example, that in the 2014 financial year an amount of $500,000 was 'provided for or paid' as dividends. That sum, along with a stated operating profit before income tax of $459,148 in 2014, is difficult to reconcile with the strikingly different financial position for the company in the 2015 financial year, which is said to be at a very low profit margin as at December 2014.
The nature of that discrepancy, ie the change in financial circumstances from the 2014 to the 2015 financial years, does not appear to have been explored or elaborated upon to the magistrate at the hearing of 3 February 2015. At that hearing, Narrogin Retravision merely submitted
the operating profit under the 2015 heading [in the first financial statement], from July 1 2014 to October 31 2014 was a deficit of $83,111, which represents a loss, or a profit loss for each month of approximately $20,000.
Further, your Honour, if I could direct you to the second statement, we have been provided with an updated version that actually takes us to 31 December 2014. And again you will note that the operating profit for the whole period is $4100. Obviously in this case the first four months of this financial year were very tough for our client, however there has been a somewhat busier period coming into Christmas.
But I'm instructed that the profit of the company is actually not particularly high at this stage. I ask your Honour to take this into consideration that it is a small family run business of only six employees and the company has limited means to pay a large fine (ts 16).
In my view, the learned magistrate had appropriate regard to the relevant mitigating factors and to the appellant's financial circumstances and capacity to pay. It does not seem unreasonable to me, or to be otherwise outside the range of a sound sentencing discretion, for her Honour to have concluded that the corporate appellant held means to meet a fine of the amount she imposed, given the limited financial evidence that was put before her.
Sentencing is a discretionary exercise that requires the weighing of a range of factors. Frequently it will be open for other views to be taken towards the weight to be given to the various relevant factors considered in a sentencing exercise. But an appellate court is not entitled to intervene to substitute its view, merely because it might have reached a different outcome had it been exercising the sentencing discretion originally: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
I do not accept the appellant's submission that the learned magistrate gave insufficient weight to the mitigating factors she identified or took inadequate regard to the financial circumstances of Narrogin Retravision and its capacity to pay a fine at the level she ultimately imposed.

Sentence was disproportionate to previous sentences

Narrogin Retravision submitted that the fine imposed was 'disproportionate' to previous sentences imposed for reg 52(3) offences. But there was nothing put before the learned magistrate about other dispositions.
Narrogin Retravision was prosecuted for this offence by way of a prosecution notice, rather than being issued with an infringement notice: see reg 342 and sch 1 of the Electricity Regulations 1947 (WA) and s 5 of the Criminal Procedure Act 2004 (WA). Schedule 1 of the Electricity Regulations specifies a modified penalty of $1,000 (for an individual) and $4,000 (for a body corporate) for an offence under reg 52(3) dealt with by way of an issue of an infringement notice.
There has been little or no appellate review of the penalties imposed for offences against the Electricity Act and associated regulations since the commencement of the Gas and Electricity Safety Legislation Amendment Act 2007 (WA). Relevantly, amendments to s 52 of the Electricity Act 1945, which commenced 1 December 2007, significantly increased the maximum penalties for an offence under the Act (where no penalty was expressly provided) to $50,000 for an individual and $250,000 for a body corporate. Previously, the maximum penalty had been $5,000 and $20,000, respectively. Similar amendments to reg 65 of the Electricity (Licensing) Regulations took effect 1 July 2008.
Here, the learned magistrate ultimately imposed a fine of $68,000, representing 27.2% of the maximum statutory penalty of $250,000 for a corporation. As noted earlier, it is evident that the learned magistrate said she applied a 20% discount to the level of the fine she would otherwise have imposed, to recognise the early plea of guilty by Narrogin Retravision. On that basis, an inference might be drawn that, but for the early plea of guilty, the learned magistrate would have imposed a fine of at least $85,000, which would be 34% of the maximum statutory penalty for a corporation.
Care must be taken, however, as to what can be inferred in this way from the reasons for decision. It is only necessary for a sentencing court to have taken into account the relevant factors which it was required to do so, as part of the intuitive synthesis of all of the relevant circumstances of the case: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27]. Aside from any statutory requirement such as that created by s 9AA(5), the sentencing court is not required to express the amount of discount for a particular factor: see Sinclair v The State of Western Australia [2014] WASCA 22 [48].

The appellant provided to this court, as an annexure to its submissions, a 'Table of Prosecution History' for reg 52(3) offences in summary proceedings, said to be sourced from what was published in so called EnergySafety Bulletins, for a reporting period from January 2013 to December 2014.
However, the information in the 'Table of Prosecution History' was never provided to the learned magistrate. I note that at the hearing of 3 February 2015, her Honour had actually asked the prosecutor whether a 'table of cases or penalties' would be provided ‑ but was informed that they would not (ts 5 ‑ 6).
I have decided in the end to accept the 'Table of Prosecution History' as some evidence upon this appeal to be weighed, notwithstanding that s 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. Nevertheless, s 39(3) goes on to qualify the restriction in s 39(1), by providing s 39(1) does not affect the power of an appeal court in s 40 to admit evidence. Section 40(1)(e) provides that, for the purposes of dealing with an appeal, an appeal court may admit any other evidence. However, for reasons that I will explain, I have found the 'Table of Prosecution History' to be of little value in deciding the appeal.
Very fairly, the respondent did not at the hearing of this application, dispute the provenance or accuracy of the information in the 'Table of Prosecution History'. The respondent also accepted that a 'sentencing range is discernible' upon a review of the outcomes as indicated for successful reg 52(3) prosecutions in the Magistrates Court. However, the respondent then submitted that a reg 52(3) offence could be committed in a variety of circumstances and, critically, that the 'Table of Prosecution History' had provided no reliable information as to the underlying factual circumstances in the penalty outcomes as identified there. Hence the respondent submitted that it was therefore not ultimately possible to render a 'meaningful comparison' as between the sentencing outcomes (ie the fines imposed) in those cases and the fine imposed on Narrogin Retravision. I agree.
At the appeal, the 'Table of Prosecution History' was not supplemented by any reasons for decision delivered in any of the cases as identified in the 'Table of Prosecution History'.
As regards a principle of consistency in sentencing and the utility of comparative cases, in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, the reasons of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, endorsed what had been said by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa[2010] NSWCCA 194 at [303] ‑ [305]. At [54], their Honours said:
Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts'. But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' [emphasis in original]. When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that “unifying principles” may be discerned'. (footnotes omitted)
The Court went on to cite what was said by the plurality of Gaudron, Gummow and Hayne JJ in Wong v The Queen[2001] HCA 64; (2001) 207 CLR 584 [59]:
[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were [55]. (emphasis in original)
The 'bare statistics' derived from the information given in the 'Table of Prosecution History' can be summarised as follows. Of 17 successful prosecution cases identified, the levels of the fines imposed ranged from $1,000 to $38,000. The maximum court costs recorded was $1,786; in the other 16 cases, court costs were less than $1,000. Thirteen of the 17 cases appear to have involved offenders that were corporate bodies, with fines ranging from $2,000 to $38,000. Overall, the mean fine imposed for individuals was $6,625; for corporate bodies the mean fine was $14,308. No information was given as to whether a plea of guilty had been entered and if so, at what point prior to sentencing.
It is clear that, in comparison with that sentencing history, the stand alone magnitude of a fine of $68,000 is notably greater than any fine recorded under the Table. Outcomes in other cases are a yardstick against which a particular case may be compared, in order to ensure a broad consistency in sentencing. However, the difficulty here is that, in the end, each sentencing disposition must be implemented upon its unique facts and underlying circumstances. Further, as the High Court said (by way of endorsement of the reasons of Simpson J) in De La Rosa, a sentencing history does not establish that the range is a correct range, or that the upper or lower limits to the range are the correct upper and lower limits. I also note, relevantly, a lack of appellate review of offences of this genre since the changes to the statutory penalty took effect in 2008.
At the time when those changes were introduced, it was said that the changes in enforcement powers were necessary 'for the protection of the community' (Parliamentary Debates, Gas And Electricity Safety Legislation Amendment Bill 2006, Second Reading Speech, Legislative Council, 24 August 2006, pages 5168b ‑ 5169a (Minister for Education and Training, The Honourable Ljiljanna Ravlich). Specifically, it was said:
[t]he level of the maximum general penalty for a breach of the Energy Coordination Act 1994, the Electricity Act 1945 and the Gas Standards Act 1972 is raised to $50 000 for an individual and $250 000 for a corporation. Currently, the Gas Standards Act 1972 has a maximum general penalty of only $2 000; similarly, the Electricity Act's maximum penalty is only $20 000, and this is grossly inadequate for today's industry environment.
In my view, it cannot be shown that, in all the circumstances, a fine of $68,000 was so disproportionate to the sentencing history for this offence as to be manifestly excessive.
While I would grant leave to appeal for this ground of appeal, my view is that the ground does not succeed.
Accordingly, the appeal must be dismissed.