Cooke v Ritchie
[2023] WASC 45
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COOKE -v- RITCHIE [2023] WASC 45
CORAM: FORRESTER J
HEARD: 14 FEBRUARY 2023
DELIVERED : 28 FEBRUARY 2023
FILE NO/S: SJA 1072 of 2022
BETWEEN: NIALL JAMES COOKE
Appellant
AND
GAIL RITCHIE
Respondent
ON APPEAL FROM:
For File No: SJA 1072 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MACLEAN
File Number : KH 404 - 409 OF 2022
Catchwords:
Criminal Law – Single judge appeal – Appeal against sentence – Whether fines imposed infringed the totality principle – Whether fines imposed were manifestly excessive – Whether magistrate failed to take into account a mandatory sentencing consideration – s 149 and s 152 of the Biodiversity Conservation Act 2016
Legislation:
Biodiversity Conservation Act 2016 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)
Wildlife Conservation Act 1950 (WA) (repealed)
Result:
Leave to appeal is granted on grounds 1, 2 and 3
The appeal is allowed in relation to grounds 2 and 3
The sentence imposed by the learned magistrate on 2 September 2022 is set aside
The appellant is re-sentenced as follows:
Charges KH 404/22 and 406/22: global fine of $5,000
Charges KH 405/22 and 407/22: global fine of $5,000
Charge KH 408/22: fine of $4,000
Charge KH 409/22: fine of $3,000
Category: B
Representation:
Counsel:
| Appellant | : | F E Sellers |
| Respondent | : | C L Arnold |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
ENW v The State of Western Australia [2021] WASCA 213
Hussaini v Szolnoski [2013] WASC 64
Inglis v Pinch [2016] WASC 30
Kabambi v The State of Western Australia [2019] WASCA 44
Neach v Hobbs [2021] WASC 135
Pickett v The State of Western Australia [2004] WASCA 291
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scook v The Queen [2008] WASCA 114
FORRESTER J:
Introduction
On 24 May 2022, in the South Hedland Magistrates Court, the appellant was convicted in his absence of charges as follows:
(a) two offences of taking fauna without authority contrary to s 149 of the Biodiversity Conservation Act 2016 (WA);
(b)four offences of possessing fauna without authority contrary to s 152 of the Biodiversity Conservation Act 2016 (WA).
On 2 September 2022, the appellant was sentenced to a fine of $7,500 on each charge, totalling $45,000.
The appellant now appeals his sentence.
Facts of the offending
On 27 March 2019, the appellant and two companions were travelling south on the Great Northern Highway, Wubin, in a Toyota Kluger. They were stopped by two police officers. A Department of Biodiversity Conservation and Attractions (DBCA) officer also stopped and indicated an intention to search the vehicle pursuant to the Biodiversity Conservation Act 2016 (WA) (the BCA).
On searching the vehicle, the DBCA officer found and seized a number of animals suspected to be native fauna; this suspicion was later proved to be correct. The appellant had no authority to possess native fauna.
The appellant made a number of admissions during and after the search, and in a further interview on 8 April 2019.
Charges KH 404/2022 and 406/2022
One of the animals located was a black-headed python. The appellant admitted that on or about 24 March 2019 at the Nanutarra Roadhouse, he picked up the python from the road with his hands and put it in a pillowcase. He then put the pillowcase inside the centre console, where it remained until 27 March 2019.
The appellant said that it was initially intended that photographs would be taken of the python and it would then be released. However, the appellant said that, when that did not happen, it was decided that they would take it to Perth and give it to a local wildlife park.
Charges KH 405/2022 and 407/2022
Another of the animals was a Pilbara death adder. This was found inside a blue and grey backpack in a cooking pot in the boot of the car.
When interviewed, the appellant said that he had picked it up from the road using a stick, on 25 or 26 March 2019, somewhere between Nanutarra and the Pannawonica turn off. The appellant claimed the death adder had been retained in order for one of his companions to photograph it.
Charge KH 408/2022
The DBCA officer also found four pygmy spiny-tailed skinks inside a red and grey backpack, which was located behind the front passenger seat of the car. The skinks were caught up in the internal netting of the backpack.
The appellant admitted that the backpack was his and that he was aware that the skinks were in it. He said that they had been taken on 25 March 2019, and that he allowed his companions to use the backpack to store the skinks, believing that they would ultimately be released.
Charge 409/2022
Also inside the red and grey backpack was a dinner plate turtle. This was also caught up in the internal netting of the backpack. Again, the appellant was aware it was there.
The appellant said that the turtle was caught at the Murchison River on 26 March 2019. He did not say by whom. He said that it was caught with the intention that it would be photographed and released. He claimed that he had forgotten to release it.
All of the animals survived without injury.
The maximum penalty for each offence is $50,000.
The appellant was not charged until 17 March 2022. On 24 May 2022, he was convicted in his absence, pursuant to s 55 of the Criminal Procedure Act 2004 (WA) (CPA). The learned magistrate required the appellant to be present for his sentencing and adjourned the matter for that to occur.
Sentencing
First sentencing hearing
The appellant was initially due to be sentenced on 19 August 2022. However, the appellant appeared by audio conference, and the learned magistrate declined to sentence him unless he was in person or appearing by video link. Accordingly, the sentencing was adjourned to 2 September 2022.
At this first appearance, the learned magistrate said:
I don't know who can tell me - whether Mr Cooke had done anything, or what he has done in terms of paying his fines from previous (sic), because I did read a very illuminating interview with Mr Cooke and the ABC, where he, at that point, was a reformed animal smuggler giving some insight in relation to what he said was his prior trade. And he also attested to the fact that he was paying those fines. So, apart from that comment he made in that 15 minutes of fame, as an animal welfare campaigner, I would like to know if he has done anything in respect to paying the fine, apart from talking about paying the fine.[1]
[1] Transcript, Niall James Cooke v Gail Ritchie, Magistrates Court of Western Australia, 19 August 2022, 7 (Transcript, 19 August 2022).
When the appellant sought to address the learned magistrate, his Honour said:
No. This isn't the minute for you to speak. But that is some information I would like. I'm not going to take it from Mr Cooke, given the vagaries of his prior statements in relation to those matters. I simply wouldn't believe anything he has to say in relation to that quote.
Now you will remember - you will recall, Ms Marshall (sic) we had a previous conversation in relation to why Mr Cooke wasn't charged with an offence of animal cruelty, which would otherwise attract a term of imprisonment. Going forward, if he engages in any behaviour like this, in my view, he certainly should be charged with animal cruelty, which attracts an actual prison term, which would be the appropriate disposition for Mr Cooke, in my view, in the future.
So that's something you might want to bear in mind, apart from your activities as an animal campaigner, Mr Cooke, if it continues, you will be going to gaol.[2]
Resumed sentencing hearing
Prosecution submissions
[2] Transcript, 19 August 2022, 7.
The prosecutor submitted that specific deterrence was the most significant sentencing consideration in the appellant's case, having regard to his criminal record. He referred to the significantly increased maximum penalty for the offences under the BCA ($50,000) as opposed to the maximum fine for the equivalent offences under the previous legislation (which was $4,000).
The prosecutor submitted that the appellant's purpose in capturing the animals was for sale, and not for the purpose of photographing and releasing them.[3]
Submissions on behalf of the appellant
[3] Transcript, Niall James Cooke v Gail Ritchie, Magistrates Court of Western Australia, 2 September 2022, 7 - 8 (Transcript, 2 September 2022).
The appellant's counsel submitted that the appellant was an amateur herpetologist[4] and had, in the past, held a licence to handle, keep, breed and supply reptiles, including those of the kind he was now charged with possessing. References were submitted on behalf of the appellant, including from his previous employer.
[4] Herpetology being the study of reptiles.
It was submitted that the appellant had suffered depression and anxiety since he was a young man, and his involvement with reptiles assisted him to manage his mental health. The appellant had also been hospitalised with a severe neurological disorder in February 2020, and had to undergo a lengthy rehabilitation process.
The appellant's counsel pointed to delay in the prosecution, in that the charges were not commenced until 17 March 2022. In the interim, he had been convicted and dealt with for offences in April 2021, at which time he had not understood there to be further charges outstanding.
The appellant had been paying his outstanding fines off at $100 per fortnight for many years, but defaulted after his illness and accordingly had more than $9,000 outstanding as a lump sum.
The appellant had been in hospital or on a disability pension for some time due to his illness and had only returned to employment earlier in 2022. However, his convictions now prevented him engaging in his chosen employment.[5]
[5] Transcript, 2 September 2022, 9 - 11.
His Honour put the appellant on notice that his explanation for the offences 'sounds like a fable to me' and invited further information. The appellant's counsel did not seek to adduce further evidence but submitted that, even if his Honour did not accept the appellant's submission, the State had failed to establish that the appellant was in possession of the animals for sale.[6]
Reasons for decision
[6] Transcript, 2 September 2022, 13 - 17.
The learned magistrate reiterated that there was the potential for the appellant to have been charged with offences which attracted a term of imprisonment, but 'that won't and cannot happen today'.[7]
[7] Transcript, 2 September 2022, 23.
His Honour accepted that the appellant had an interest in photographing reptiles, but did not accept that his only intention initially was to photograph these animals and it devolved into a different plan, saying:
The whole intention of taking these animals was to keep them and that's the basis that he will be sentenced.[8]
[8] Transcript, 2 September 2022, 22.
His Honour observed that, even though the appellant had been convicted in his absence, he had accepted responsibility for his offending. He noted the appellant had made admissions at the time he was apprehended and regarded that of having 'some value'.[9]
[9] Transcript, 2 September 2022, 23.
His Honour referred to the totality principle and observed that there was overlap between the offences. He took into account the appellant's medical difficulties and their impact on his welfare, as well as the fact that his convictions resulted in him losing his employment, which was important to him.
The learned magistrate disavowed any finding that the appellant was intending to sell the animals and observed that, while the appellant was not being resentenced for his prior offending, his criminal record provided no mitigation.
Having noted the 'dramatically' increased maximum penalty available, his Honour fined the appellant a total of $45,000 and said:
I've arrived at that figure by imposing fines of $7,500 in relation to each of the offences. Now, I haven't sought to differentiate one from the other, but I've had regard to a couple of things including the final figure when I've arrived at the individual amounts and I've done that because I think it's fair to have regard to the fact that this is all part of the same transaction. It's also fair that I have regard to the final figure in determining whether that amount is excessive or insufficient as an answer to the criminality disclosed by your conduct.
It is a significant fine, Mr Cooke. Significantly more than you faced previously, but that's in relation to a few things. Now your record is abominable in relation to this type of offending. The potential fines have increased over time. They've increased significantly over time. So in my view, having regard to all of those factors, that is the appropriate fine as an answer to the criminality disclosed by you.[10]
[10] Transcript, 2 September 2022, 25.
His Honour also noted the references but expressed some reservation in relation to the extent to which the referees were aware of the appellant's offending.[11]
[11] Transcript, 2 September 2022, 25 - 26.
Grounds of Appeal
The appellant appeals his sentence on three grounds:
(1)the magistrate erred in law by failing to take into account a mandatory consideration namely the appellant's means to pay the fine and the extent to which payment of the fine would burden the appellant;
(2) the individual fines of $7,500 were manifestly excessive;
(3)the total fine of $45,000 offends the totality principle.
Statutory framework and legal principles
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A sentence imposed as a result of a conviction is a decision which may be appealed.[12]
[12] CA Act, s 6(f) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground of has a reasonable prospect of succeeding,[13] meaning that the ground is required to have a rational and logical prospect of succeeding.[14] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[15]
[13] CA Act, s 9(2).
[14] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[15] CA Act, s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[16]
[16] CA Act s 14(2).
The general principles governing appeals against sentence which assert implied error on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well-established[17] and need not be repeated.
[17] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Ground 3
Having regard to the manner in which the learned magistrate approached the sentencing, it is convenient to first consider ground 3.
The first limb of the totality principle requires that the total effective sentence imposed on the appellant bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the appellant personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.[18]
[18] Kabambi v The State of Western Australia [2019] WASCA 44 [21(3)].
When referring to the level of criminality involved in the offending, his Honour specifically rejected the appellant's explanation as mitigatory, and identified the following factors as being of relevance:
(a)the appellant took possession of the animals;
(b)the appellant maintained possession of the animals over a period of time;
(c)the offending was all part of the same transaction.
The learned magistrate did not identify any aggravating factors.
The seriousness with which Parliament regards such offending is marked by the maximum penalty of $50,000, recently increased from $4,000 for like offending. It remains necessary to consider the place which the particular offending occupies within the range of offending under the provisions.
The offending was undoubtedly serious. Over the period of 4 days, the appellant either personally unlawfully took reptiles, or facilitated the storage of animals which he knew to have been unlawfully taken. In the case of charge KH 408/2022, the appellant possessed four animals.
The learned magistrate made a finding, unchallenged on appeal, that the appellant took and possessed the animals with the intention of keeping them.[19] However, the appellant was not sentenced on the basis that the offending involved the seeking of commercial gain. Further, the offending was unsophisticated and limited in scale.
[19] Transcript, 2 September 2022, 22.
While there is no evidence that any of the animals were endangered species, any interference with native fauna has the potential to disrupt the balance of the environment. Once they were removed, it was not possible to restore the animals to their natural habitat. However, the animals were not otherwise harmed in any way.
In the case of the two charges of unlawfully taking the animals, the appellant was also charged with possessing the animals. While the taking of any native fauna is undoubtedly serious, in this case the gravamen of the conduct was removing the animals from their native environment, transporting them elsewhere, and keeping them for an extended period. Given that conduct also formed the basis for the possession charges, care needs to be taken not to doubly punish the appellant for it.
The appellant submitted that s 9AA of the Sentencing Act 1995 (WA) (the Sentencing Act) applied in this case. I respectfully agree with the observations of Pritchard J in Inglis v Pinch[20] and Archer J in Neach v Hobbs[21] that s 9AA only applies to sentences of imprisonment involving a fixed term, and not to fines. Further, and in any event, in my view, the appellant did not 'plead guilty'. He was convicted in his absence, pursuant to s 55 of the CPA.
[20] Inglis v Pinch [2016] WASC 30 [52].
[21] Neach v Hobbs [2021] WASC 135 [24].
While s 9AA does not apply in this case, the appellant is still entitled to mitigation as a result of his cooperation with the authorities at the time of the search and in the later interview. His explanation for the offending was rejected. However, the appellant did not seek to set aside his conviction and, as observed by the learned magistrate, to that extent he has accepted responsibility for his offending.
In circumstances in which there is a substantial and lucrative market for the unlawful trade of native fauna, general deterrence is a dominant sentencing consideration in dealing with the taking and possession of such fauna.
The appellant is not of prior good character, and has been dealt with on many prior occasions for like offending. He has a criminal history dating back to 2015, when he was 22 years old. While there are a number of traffic and drug offences, for which fines were imposed, the seriousness of his criminal history for present purposes is to be found in the number of similar offences for which the appellant has previously been dealt with.
On 14 October 2016, the appellant was convicted of 28 charges of taking fauna without a licence (73 reptiles), 7 charges of possessing protected fauna not lawfully taken (14 reptiles) and one charge of transporting fauna in a manner likely to cause injury or suffering under the Wildlife Conservation Act 1950 (WA) (repealed) (WCA). He was sentenced to global fines of $10,000 and $2,000.
On 4 August 2017, the appellant was convicted in the Joondalup Magistrates Court of 5 charges of unlawful possession of protected fauna under the WCA, committed on 17 December 2015. He was fined $5,000. He was also convicted of failing to observe the conditions of a licence, contrary to the WCA, for which he was fined $700.
On 30 April 2021, the appellant was convicted of keeping fauna in captivity or confinement, contrary to the WCA and regulations made under the WCA, for which he was fined $500. That offence was committed in January 2018.
The appellant was also sentenced on four occasions in 2014 and 2015 for offences against the WCA, in respect of which his convictions were spent. The charges included 15 charges of taking fauna without a licence, 9 charges of possession of protected fauna which were not lawfully taken, 3 charges of exporting fauna without a licence, keeping fauna contrary to licence conditions and 2 charges of transporting fauna in a manner likely to cause injury or suffering. All of the charges related to reptiles. In each case, the appellant was fined.
As the learned magistrate acknowledged, the appellant's criminal history is not aggravating, but he is entitled to no mitigation in respect of it.[22] Further, the persistence of the appellant's offending in a similar manner highlights the need for specific deterrence.
[22] Transcript, 2 September 2022, 24.
The offences in this case were committed in March 2019. The appellant was not charged until March 2022, a delay of almost exactly three years. There is no explanation for the delay.
In Scook v The Queen,[23] McLure JA (as she then was) said, of delay:
Delay itself (mere delay) is not mitigatory. Delay in combination with other relevant sentencing factors favourable to the offender, such as progress towards rehabilitation, is mitigatory. In those circumstances, delay is facilitative or causative but not itself mitigatory. As a consequence, the reason for the delay is not ordinarily relevant.
[23] Scook v The Queen [2008] WASCA 114 [31].
There is no dispute that the appellant has not committed any relevant offences since the commission of the current offences in March 2019, a period of 3½ years.[24] While the appellant had been in hospital and then recovering for much of 2020 and at least some of 2021, he had been working as a tour guide in the Kimberley since his recovery, and his employer had provided a glowing reference on his behalf. To that extent, as a result of the delay, the appellant has been able to demonstrate evidence of progress towards rehabilitation, which is mitigatory.
[24] The appellant had committed offences relating to cannabis in October 2021, which were explained by his counsel as relating to chronic pain arising out of his extended illness and physical rehabilitation.
The delay is also relevant to the fact that the licence of the tour operator by whom the appellant was employed was subject to a condition that it not employ any person convicted of an offence under the BCA carrying a penalty of greater than $4,000 in the past 10 years. As this is a condition which apparently applies to tour operators broadly, the appellant is no longer able to work in his chosen industry, unless the relevant Director-General were to otherwise approve, which appears unlikely to occur. Had the appellant been charged and convicted in 2019, that 10 years would have commenced then, and not in May 2022.
Pursuant to s 53 of the Sentencing Act, the learned magistrate was required to take into account, as far as practicable, the appellant's means and the burden any fine would impose on him. By ground 1, the appellant contends that his Honour did not take those factors into account. However, the appellant's lack of financial means is also relevant to the determination of grounds 2 and 3.
At the time of the sentencing, the appellant had outstanding fines of more than $9,000, even though he had been paying off fines since about 2015. His Honour was told that the appellant's repayments had been $100 per fortnight. However, in February 2020, the appellant had suffered a debilitating neurological disorder, and he had ceased paying for a time, which resulted in his repayment plan being terminated and the whole amount coming due. He had only recommenced employment in early 2022, which his convictions now prevented him from continuing.
In those circumstances, a fine of $45,000 in total was wholly beyond the appellant's capacity to pay, either immediately or within a reasonable time. Even if he were able to resume his payments as previously scheduled, it would take 18 years to pay that sum, let alone the other outstanding fines.
In Hussaini v Szolnoski,[25] Hall J observed, in relation to s 53:
The reference to div 1 of pt 2 of the Sentencing Act is to the general sentencing principles. These include that a sentence imposed on an offender must be commensurate with the seriousness of the offence: s 6(1). This means that whilst a court must take into account the means of an offender in considering the amount of any fine that exercise should not result in a fine which is not commensurate with the seriousness of the offence. In some cases it may be necessary to impose a fine that is difficult for an offender to pay or even beyond the means of an offender, if a fine of any lesser amount would not be commensurate with the seriousness of the offence. This assumes that no other disposition is reasonably open.
However, the seriousness of an offence will rarely dictate the precise amount of an appropriate fine. There will usually be a range of fines that will be open to be imposed. It is in this context that the means of the offender and the extent of any burden on the offender will come into play. Where an offender is of very limited means and the burden of a fine would be very onerous, those factors will justify the imposition of a fine towards the lower end of the range that would be appropriate for an offence of the seriousness being dealt with by the court.
[25] Hussaini v Szolnoski [2013] WASC 64 [25] - [26].
There has been no appellate consideration of sentences imposed under the BCA and a range of sentences customarily imposed for the offences committed by the appellant cannot be ascertained. That does not prevent consideration of whether there has been a breach of the first limb of the totality principle; it is but one of the factors to be considered.
In my view, despite its seriousness, the overall level of criminality involved in the offending was, while not at the lowest end of the range, towards the lower end. With the exception of charge KH 408/22, each charge related to one animal. There was no significant organisation to the offending, which appeared opportunistic. The animals were not possessed for any commercial gain and they were not harmed. One had been in the appellant's possession for up to 4 days, but others had only been in his possession for one or two days. There was a significant overlap between four of the charges. In the case of charge KH 408/22, the appellant had agreed to allow the use of his backpack for the animals to be held, but others had collected the animals.
In light of that finding, and having regard to matters personal to the appellant, and all of the relevant sentencing factors, I have concluded that the total sentence imposed does not bear a proper relationship to the overall criminality involved in all of the offences.
While the total sentence was only 15% of the maximum available, it was a very large sum to fine an individual. Further, s 53 of the Sentencing Act recognises that a fine will have different impacts on an individual depending on their means and prospects. A fine which seems relatively modest to a person with a high income or earning capacity may have a significantly more punitive and deterrent impact on a person of very limited means.
In my view, the total amount of the fines, having regard to all relevant sentencing factors, and the impact of the fines on the appellant in this case, is so disproportionate to the overall seriousness of the offending as to demonstrate error.
Ground 3 has been made out.
Ground 2
In order to determine whether a sentence for an individual sentence is manifestly excessive, the offence should be viewed in light of the maximum sentence for the offence, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.[26]
[26] Kabambi v The State of Western Australia [2019] WASCA 44 [21(2)].
Ground 2 requires consideration of many of the same factors as ground 3 and I rely on that analysis.
Whether a sentence is manifestly excessive is not to be determined only by reference to any established range; it is but one factor to be considered.[27]
[27] ENW v The State of Western Australia [2021] WASCA 213 [54].
Having regard to my finding as to the relative seriousness of the appellant's criminal conduct, and taking into account the offender's personal circumstances, including the delay in his prosecution and the fact that he has remained offence free for well over three years, as well as his limited means, I am satisfied that the individual fines imposed on him were manifestly excessive.
I would uphold ground 2.
Ground 1
Grounds 2 and 3 having been made out, it is strictly unnecessary for me to deal with ground 1. However, it is appropriate to observe that, when articulating the factors which he did take into account in setting the amounts of the fines, the learned magistrate omitted to refer to the appellant's means or his employment prospects in any way. Further, while he did refer to the appellant's loss of employment earlier in his sentencing remarks, his Honour was noting the loss of a job which was 'important' to the appellant, rather than referring to the appellant's capacity to earn an income.
The mere fact that his Honour did not refer to those matters in the course of his sentencing remarks does not necessarily mean that he failed to take them into account. There had been reference during the proceedings, including very shortly prior to the imposition of the sentence, to the appellant's outstanding fines, his poor health and his repayment schedule, making it unlikely that those matters escaped his Honour's attention.
In the absence of credible evidence to the contrary, it is to be assumed that a magistrate has taken all relevant matters into account.[28] This is even more likely to be so in relation to the imposition of fines, which are a very common sentencing disposition in the Magistrates Court.
[28] Pickett v The State of Western Australia [2004] WASCA 291 [10]; Rundle v Innerd [2015] WASC 340 [117].
However, in this case, given the lack of an established sentencing range, it would have been appropriate for the learned magistrate to articulate more clearly his assessment of the criminality involved, and specifically his reasons for determining that a fine so far outside the appellant's means and financial prospects was the only available option commensurate with the seriousness of the offence.
Leave is granted in relation to ground 1, but the ground is dismissed.
Resentencing
It is necessary to resentence the appellant. In my view, I am in as good a position to re-exercise the sentencing discretion as a magistrate would be on remittal.
The appellant's counsel was unable to provide the court with any proper updated information as to the appellant's financial circumstances or prospects. I was informed that was because they had been unable to contact the appellant for some time.
Section 53 of the Sentencing Act requires the court to take into account the appellant's means and the extent to which payment of the fine will burden him as far as practicable. Even if the court is unable to find out that information, the court may fine the appellant.
I have already set out the appellant's financial circumstances and his employment prospects at the time of his sentencing. Together with the other matters I have referred to in the consideration of grounds 2 and 3, I will take those matters into account in imposing sentence.
In the circumstances, I consider the appropriate fines to be as follows:
Charges KH 404/22 and 406/22: global fine of $5,000;
Charges KH 405/22 and 407/22: global fine of $5,000;
Charge KH 408/22: fine of $4,000; and
Charge KH 409/22: fine of $3,000.
Orders
Leave to appeal is granted on grounds 1, 2 and 3.
The appeal is allowed in relation to grounds 2 and 3.
The sentence imposed by the learned magistrate on 2 September 2022 is set aside.
The appellant is re-sentenced as follows:
(1)Charges KH 404/22 and 406/22: global fine of $5,000;
(2)Charges KH 405/22 and 407/22: global fine of $5,000;
(3)Charge KH 408/22: fine of $4,000; and
(4)Charge KH 409/22: fine of $3,000.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
28 FEBRUARY 2023
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