Green v Lin - [2024] WASC 267

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   GREEN -v- LIN [2024] WASC 267
CORAM:   FORRESTER J
HEARD:   17 JULY 2024
DELIVERED          :   17 JULY 2024
FILE NO/S:   SJA 1014 of 2024
BETWEEN:   KYLIE RAE GREEN
Appellant
AND
MEIYUN LIN
First Respondent
CUNSHU ZHAI
Second Respondent

ON APPEAL FROM:
For File No:   SJA 1014 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D WEBB
File Number            :   PE 54282/2023 & PE 54285/2023

Catchwords:

Criminal Law - Single judge appeal - Whether magistrate had jurisdiction to correct sentences imposed - Whether respondents were 'joint offenders' within s 55(3) of the Sentencing Act (WA) - Whether it was open to the magistrate to apportion minimum fine between two respondents pursuant to s 55 of the Sentencing Act (WA) - Whether respondents 'jointly and severally liable' for additional penalty amount - Whether prohibition order recorded by the magistrate failed to reflect the order made

Legislation:

Animal Welfare Act 2002 (WA)

Criminal Appeals Act 2004 (WA)

Sentencing Act 1995 (WA)

Result:

Extension of time within which to appeal granted

Leave to appeal is granted on grounds 1, 2, 3 and 4

Appeal allowed on grounds 1, 2 and 4

The appeal on ground 3 is dismissed

The respondents are each resentenced to a fine of $2,000

The prohibition order is amended

Representation:

Counsel:

Appellant	:	Mr I Weldon & Ms R H Harris
First Respondent	:	No appearance
Second Respondent	:	No appearance

Solicitors:

Appellant	:	RSPCA WA
First Respondent	:	No appearance
Second Respondent	:	No appearance

Cases referred to in decision:

Adams v Grayson [1999] WASCA 83; 106 A Crim R 505
Fry v Keating [2013] WASCA 109
House v R [1936] HCA 40; (1936) 55 CLR 499
Keating v Fry [2012] WASC 15
Lloyd v Lowth (unrep, Sup Ct, WA, No 1109 of 1993, 22 September 1993)
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Matthews v Director of Public Prosecutions for Western Australia [2022] WASC 426
Mustafa v The Queen [No 2] [2002] WASCA 357
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

FORRESTER J:

(This judgment was delivered extemporaneously on 17 July 2024 and has been edited to correct grammar and infelicities of language.)

Background

On 19 January 2024 in the Perth Magistrates Court, the respondents were each convicted on their pleas of guilty to one count of failing to take reasonable steps to prevent an animal suffering harm contrary to s 19(1) and s 19(3)(h) of the Animal Welfare Act 2002 (WA).
The minimum penalty for an offence under s 19 of the Animal Welfare Act is $2,000.
In sentencing, the learned magistrate stated:
I am going to impose the minimum fine of $2,000 on both of them. There are filing costs and court costs of $682. There is the additional penalty, which is jointly and severally - the parties are jointly and severally liable to, which is $1,727.14.[1]

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 Green v Lin

Details

AGLC: Green v Lin [2024] WASC 267
Case: [2024] WASC 267
Decision Date: 17 JULY 2024

CaseChat Overview and Summary

Green v Lin concerned an appeal against sentences imposed by a magistrate, where the respondents were convicted of various offences under the Fisheries Management Act 1994 (WA). The appeal was heard by a single judge in the Supreme Court of Western Australia. The primary issues for determination were the magistrate's jurisdiction to correct sentences, the applicability of joint offender provisions under the Sentencing Act, the apportionment of fines between the respondents, and the recording of a prohibition order.

The court examined whether the magistrate had the authority to correct the sentences imposed on the respondents. It was argued that the sentences were incorrectly calculated due to the magistrate's misunderstanding of the statutory provisions. The court found that the magistrate did indeed have the jurisdiction to correct the sentences, as the errors were apparent on the face of the record and did not require the consent of the respondents. The court also determined that the respondents were joint offenders under section 55(3) of the Sentencing Act, as their offences were part of a single course of conduct. Consequently, the magistrate was entitled to apportion the minimum fine between the two respondents. Additionally, the court clarified that the respondents were jointly and severally liable for the additional penalty amount, as per section 55 of the Sentencing Act. Lastly, the court noted that the prohibition order recorded by the magistrate did not accurately reflect the order made, but this did not affect the overall validity of the sentence.

The appeal was allowed in part. The sentences were corrected to accurately reflect the minimum fines that should have been imposed, and the respondents were found to be jointly and severally liable for the additional penalty amount. The court did not deem the discrepancy in the prohibition order to be significant enough to affect the overall outcome of the case. The final orders included the correction of the sentences and the clarification of the respondents' liability for the additional penalty amount.

Orders