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Wildlife Conservation Act 1950 (WA) (repealed)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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Cooke v Ritchie

Details

AGLC: Cooke v Ritchie [2023] WASC 45
Case: [2023] WASC 45
Decision Date

CaseChat Overview and Summary

The appellant, Niall James Cooke, appeals against his sentence imposed by the South Hedland Magistrates Court on charges of taking and possessing native fauna without authority contrary to the Biodiversity Conservation Act 2016 (WA). The appeal is heard by the Supreme Court of Western Australia. The primary issues in this case revolve around whether the fines imposed by the magistrate infringed the totality principle, whether the fines were manifestly excessive, and whether the magistrate failed to take into account the appellant's means to pay the fine and the extent to which payment of the fine would burden the appellant. The court found that the total fine of $45,000 did not bear a proper relationship to the overall criminality involved in the offences and was manifestly excessive. The court also found that, while the learned magistrate had regard to the appellant's outstanding fines, his poor health and his repayment schedule, he did not expressly articulate his assessment of the criminality involved or his reasons for determining that a fine so far outside the appellant's means was the only available option commensurate with the seriousness of the offence. The appeal is allowed in relation to grounds 2 and 3. The sentence imposed by the magistrate is set aside and the appellant is re-sentenced to a global fine of $5,000 for charges KH 404/22 and 406/22, a global fine of $5,000 for charges KH 405/22 and 407/22, a fine of $4,000 for charge KH 408/22, and a fine of $3,000 for charge KH 409/22.

Orders