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]
[1] Transcript, RSPCA v Cunshu Zhai and Meiyun Lin, Magistrates Court of Western Australia, 19 January 2024, 15 (ts 19 January 2024).
The 'additional penalty' was in fact an order for reimbursement made pursuant to s 55(2)(f) of the Animal Welfare Act.
Her Honour also made an order that the respondents be prohibited from contact with animals for a period of 6 months from 19 January 2024.
On 30 January 2024, the prosecution obtained certified copies of the prosecution notices, which recorded that each of the respondents was fined $2,000, ordered to pay costs of $682, ordered to pay an 'additional penalty' of $1,727.14 and was made subject to a 6 month prohibition from contact with animals.[2]
[2] Affidavit of Ruby Helen Harris affirmed 12 June 2024 [7] (Harris Affidavit).
However, on that date, the respondents' lawyers wrote to the 'Associate to Magistrate Webb', directed to the email address for the Perth Magistrates Court, acknowledging that both respondents pleaded guilty to the charge against them and stating:
…we were under the impression that the penalty imposed on [the respondents] on 19 Jan 2024 was a global penalty of $4,409.14 comprising of $2,000 + $682 + $1727.14 = $4,409.14. Attached is a copy of the notice of Conviction for Madam Meiyun Lin.
We have been instructed that Mr Cunshu Zhai was similarly fined for similar amount of $4,409.14. Attached is a copy of the notice of Conviction for Mr Cunshu Zhai.
We request the Magistrate to cancel or to rescind the penalty imposed on Mr Cunshu Zhai in this case. The penalty on Mr Zhai is an error and to allow the penalty on Mr Zhai will be a miscarriage of trial and of the facts.[3]
[3] Harris Affidavit, Annexure RHH3.
Counsel for the prosecution replied to the respondents' lawyer and the Perth Magistrates Court email address indicating that as the matter had been finalised, the learned magistrate was functus officio and had no power to 'cancel or rescind' the penalty, but there was an available statutory remedy if the sentence imposed was not in accordance with the law.[4]
[4] Harris Affidavit, Annexure RHH4.
However, counsel also acknowledged that the manner in which the 'additional penalty' had been recorded suggested that each respondent had been ordered to pay it, which did not properly reflect the learned magistrate's order, and was likely a function of the manner in which the court was compelled to electronically record orders.[5]
[5] Harris Affidavit, Annexure RHH4.
On 31 January 2024, a judicial support officer from the Perth Magistrates Court wrote to the parties stating:
We got directions from [the] Presiding Magistrate and the intention was to impose the fine globally on Cunshu Zhai and Meiyun Lin. The outcomes have now been amended and please see the attached amended notice of convictions.[6]
[6] Harris Affidavit, Annexure RHH5.
The amended Notice of Conviction in each case, and copies of prosecution notices certified on 9 February 2024, recorded that the respondents were each fined $1,000, ordered to pay costs in the sum of $341 and an 'additional penalty' of $863.57 and prohibited from contact with animals for 6 months.[7]
[7] Harris Affidavit, Annexure RHH6.
The prosecution notices certified on 9 February 2024 record these penalties as having been imposed on 19 January 2024.
By appeal notice filed 16 February 2024, the prosecuting authority has appealed against the sentences imposed on the respondents on the basis that:
(a)the learned magistrate had no power to recall the sentences imposed on 19 January 2024;
(b)in any event, the penalties subsequently imposed by the learned magistrate were below the mandatory minimum fine.
The appellant also appeals against the amendment of the reimbursement order made pursuant to s 55(2)(f) of the Animal Welfare Act, and the manner in which the prohibition order was expressed.
To the extent that an extension of time is required, it is granted bearing in mind that the sentences and orders appealed against were only made clear on 31 January 2024.
Neither respondent chose to take part in the appeal, and neither respondent appeared at the hearing of the appeal.
For the reasons which follow, leave to appeal is granted on all of the grounds and the appeal is allowed on grounds 1, 2 and 4.

Statutory framework

Application for leave to appeal

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.[8]
[8] 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 has a reasonable prospect of succeeding,[9] meaning that the ground is required to have a rational and logical prospect of succeeding.[10] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[11]
[9] CA Act s 9(2).
[10] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[11] 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.[12]
[12] CA Act s 14(2).
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing judge has made an error in exercising his or her discretion.[13]

Application to adduce additional evidence

[13] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v R [1936] HCA 40; (1936) 55 CLR 499.

An appeal court must decide an appeal on the evidence and material that were before the lower court.[14] However, the court has broad powers to admit other evidence, pursuant to s 40(1) of the CA Act.
[14] CA Act s 39(1).
In the present case, the additional evidence is sought to be adduced to show what occurred after the sentencing of the respondents. It is appropriate to admit the evidence.

Grounds 1 and 2

It is appropriate to consider grounds 1 and 2 together.
By ground 1, the appellant claims that the learned magistrate erred by altering the sentence of a fine of $2,000 for each respondent in response to a letter received from the respondents' representatives after a lawful sentence had been imposed.
The appellant submits that after the sentence was handed down and the hearing ended on 19 January 2024, the learned magistrate no longer had jurisdiction to alter the respondents' sentences. Rather, any consideration of the sentence should have been referred to a court of appeal.
Ground 2 asserts error on the part of the learned magistrate in imposing a fine of $1,000 on each offender when the minimum fine required by s 19(1) of the Animal Welfare Act is a fine of $2,000.
The grounds are appropriately considered together because whether the learned magistrate had the power to amend the sentence in this case depends in large part upon whether it was open to impose the subsequent sentence in the case of each of the respondents.
Absent express power, a magistrate does not have the power to recall a sentence and impose a fresh sentence on an offender.[15] However, in some cases, a court is granted power to do so. Relevantly, s 37 of the Sentencing Act 1995 (WA) provides:
(1)If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.
(2)The powers in subsection (1) may be exercised by a court on its own initiative or on an application by the offender or the prosecutor made in accordance with the regulations, but in any event the court must give all parties the opportunity to be heard.
(3)If a court's order imposing a sentence contains a clerical mistake or error arising from an accidental slip or omission, the court may correct it at any time on its own initiative without recalling the order, but the court must ensure that all parties and relevant authorities are notified of the correction.
…
(5)In this section -
sentence includes an order in addition to sentence.
[15] Matthews v Director of Public Prosecutions for Western Australia [2022] WASC 426 [14]; see also Mustafa v The Queen [No 2] [2002] WASCA 357 [63] - [66].
There is no suggestion that the learned magistrate exercised the power provided by s 37(1). The original sentence imposed in this case was in accordance with the Sentencing Act and the written law under which the offence was committed. Further, and in any event, a judicial officer exercising the power under s 37(1) must give all parties the opportunity to be heard. It is unlikely that, without more, the email correspondence between the parties and the Magistrates Court satisfied that requirement.
Based on the email from the Magistrates Court to the parties, which said that her Honour's intention was to impose a fine 'globally' on the respondents, in my view it is likely that her Honour considered herself to be exercising the power provided by s 37(3). The question is whether that provision was capable of application in this case.
The court's response that her Honour's intention had been to impose a 'global fine' on the respondents can only be reasonably understood to mean a fine apportioned between the respondents.
This raises the question of whether it was open to her Honour to apportion the fine between the two respondents pursuant to s 55 of the Sentencing Act, which provides:
(1)If a court sentencing 2 or more joint offenders decides to fine them it may apportion between them as it thinks fir the fine it would have imposed if there were only one offender.
(2)If the statutory penalty for the offence is a mandatory fine or includes a minimum fine, a court apportioning a fine under subsection (1) must apportion at least the mandatory fine or the minimum fine, as the case requires.
(3)In this section -
joint offenders means persons who are each convicted of an offence because a legal relationship between them (such as being co-owners of property) results in each of them being criminally responsible for the act or omission constituting the offence.
If the respondents were 'joint offenders', her Honour would have been entitled to 'globally' fine the respondents, that is, to apportion the minimum fine between them. There would be no error in the sentences ultimately imposed, and it would have been open to her Honour to correct the clerical error made by wrongly recording the total fine against each respondent, as opposed to only their apportioned share.
If, however, her Honour was not entitled to apportion the minimum fine, the sentences ultimately imposed on the respondents were not in accordance with the written law under which they were imposed and her Honour was not entitled to act under s 37(3).
Each of the respondents was separately charged that they were cruel to the dog in that, while they were a person in charge of the dog, the dog suffered harm which could have been alleviated by taking reasonable steps.
The facts read to her Honour alleged that on 20 June 2023 an RSPCA inspector visited the respondents' property. On 2 July 2023, she returned to the property where she spoke to the male respondent and then later the female respondent. The female respondent verified that the dog had been seen by a vet since the first RSPCA visit but that she had not gone back to the vet with the dog as instructed because she thought the dog was getting better. In fact, the dog was in extremely poor condition, with severe mouth and tongue disease. On 3 July 2023 the dog was taken to the vet by the RSPCA inspector. Unfortunately, the dog stopped breathing while being examined under anaesthetic and the vet was unable to pull out the dog's tongue to access his larynx.[16]
[16] ts 19 January 2024, 4 - 5.
The offence was a continuing offence. The prosecutor did not particularise individual acts on the part of either of the respondents by which they were said to be criminally responsible. No particulars were given as to how they were said to be 'in charge' of the dog, but it appears to have been understood that they were each principal offenders.
The submissions made on the part of the respondents were consistent with this, in that counsel indicated that the respondents were the joint owners of the dog and they accepted equal responsibility for it.
The appellant contends that the respondents were not 'joint offenders'. She relies on the decision of Miller J in Adams v Grayson.[17]
[17] Adams v Grayson [1999] WASCA 83; 106 A Crim R 505.
In Adams, the respondents were found to be in joint possession of 174 abalone in excess of the prescribed limit. In addition to any general penalty, the court was required to impose an additional penalty equal to 10 times the prescribed value of the fish the subject of the offence. In reliance on s 55(2) of the Sentencing Act, the sentencing magistrate imposed half of the additional penalty on each of the offenders.
On appeal by the Crown, as it then was, Miller J noted that s 166A of the Justices Act 1902 (WA) (which was repealed following the commencement of the Sentencing Act) appeared to be a precursor to s 55 of the Sentencing Act. Section 166A provided:
(1)Where 2 or more persons are charged with, and are severally convicted of, a simple offence of such a nature that the offence might not, in the peculiar circumstances of the case, having been committed by one of those persons without being committed by the other or others of them, then, if the offence is punishable by a fine, the justices convicting them may apportion among those persons, either equally or in such other proportions as the justices think fit, the fine that they might have imposed on one of them, had he been the only person convicted of the offence.
(2)Where the offence mentioned in subsection (1) is an offence for which a minimum fine, irreducible in mitigation, is provided, that provision is satisfied by the apportionment, pursuant to this section, of not less than the minimum fine among the persons convicted.
Of that provision, in Lloyd v Lowth,[18] Murray said:
The purport of the provision is clear. Where, in a case such as this, there are two defendants before the Court who are prosecuted because they are partners in a business and therefore jointly and separately occupiers of the particular premises, the court is really empowered to consider them as being in substance the one defendant. Whilst they must of course be separately dealt with and separately punished, proper regard will be paid to ordinary sentencing principles if the two persons are considered as one legal entity and the proper sentence arrived at upon that basis, it being apportioned between them.[19]
[18] Lloyd v Lowth (unrep, Sup Ct, WA, No 1109 of 1993, 22 September 1993).
[19] Lloyd v Lowth, 6.
In Adams, Miller J observed that the provisions of s 55 of the Sentencing Act:
'…clearly mirror the provisions of s 166A of the Justices Act, and the observations of Murray J…are clearly applicable to the provisions of s 55 of the Sentencing Act. In my view, the section is intended to apply in just such circumstances, where there are two defendants before the court who are prosecuted because they are partners or because of some other legal relationship between them (such as being co-owners of property) and the result is that each is criminally responsible, although 'in substance the one defendant'.[20]
[20] Adams v Grayson [13].
Miller J held that each of the respondents in Adams was a defendant in his own right, having fished for the abalone, and been in joint possession of it. In short, the legal relationship between them did not result in them being criminally responsible for the act constituting the offence. Accordingly, the magistrate was found to have erred in apportioning the minimum fine.
Section 55 was also considered in Fry v Keating.[21] In that case, a company and two directors of the company were prosecuted. The company was convicted of breaching its duty to provide a safe working environment under the Occupational Safety and Health Act 1984 (WA). The directors were convicted because the company's offence was attributable to neglect on their part. On appeal from the learned magistrate, McKechnie J held that the learned magistrate was entitled to apportion the fine imposed between the company and the directors because the directors could only be convicted of the offence due to their legal relationship with the company.[22]
[21] Fry v Keating [2013] WASCA 109.
[22] Keating v Fry [2012] WASC 15[45] - [53].
However, on appeal from the decision of McKechnie J, Murphy JA (with whom Pullin and Newnes JJA agreed) held that the learned magistrate had not been entitled to apportion the fine, and said:
Where there are two or more persons criminally liable for an act by virtue of a legal relationship between them, for example, through co‑ownership of property, apportionment will operate so as to avoid the situation where punishment is meted out multiple times where there is, in substance, only one offender. However, where multiple offenders are liable because of an act or omission that each is said to have done or not done, it may be seen as appropriate to assess the extent of each offender's liability against their act or omission.[23]
[23] Fry v Keating [50].

In the present case, the respondents were the co-owners of the dog. However, it was not their relationship as co-owners, or their position as owners of the dog, which resulted in each of them being criminally responsible for the offence. The legal relationship in each case was incidental to the offence for which they were prosecuted. It was their individual physical charge of the dog, and their individual neglect of the dog while in charge of it, which rendered them criminally responsible for the offence.
Each respondent was prosecuted separately as a person who, having been in charge of the dog, was cruel to that dog by failing to take reasonable steps. Each respondent was a principal offender, and could have been convicted in the absence of the other.
I am satisfied that the respondents were not 'joint offenders' within the meaning of s 55(3) of the Sentencing Act. As a result, the learned magistrate was not entitled to apportion the minimum fine as against the respondents. Accordingly, if her Honour did purport to correct the sentence pursuant to s 37(3), she was not entitled to do so.
Grounds 1 and 2 have been made out. The respondents must be resentenced.
I do not have any information as to the financial position of the respondents or their means to pay, as the respondents have chosen not to appear on the appeal. However, the appellant did not contend that the original sentence imposed, being the minimum sentence, was inadequate in this case. It would not be appropriate to impose a greater fine than that. Accordingly, each of the respondents will be resentenced to the minimum fine of $2,000.

Ground 3

Ground 3 asserts error on the part of the learned magistrate on the basis that:
[H]aving on 19 January 2024 accepted a submission that an order for reimbursement made under s 55(2)(f) of the [Animal Wefare Act] created a joint and several liability, on 31 January 2024 altered that decision by dividing the amount equally between the two offenders.
Section 55(2)(f) of the Animal Welfare Act permits a court, after convicting an offender, to order them to reimburse a person who incurred costs under s 40(1), s 41 or s 42 of the Act in relation to the animal the subject of the offence.
Under s 42(2) an inspector who seizes an animal is to ensure that the animal is properly treated and cared for including the provision of veterinary care if that is appropriate. At first instance, the prosecution sought the sum of $1,727.14, being for veterinary costs incurred by the inspector in relation to the dog.
When the learned magistrate asked whether that amount needed to be split between the respondents, the following exchange occurred:
Counsel for the Prosecution: It's a matter for your Honour but if your Honour wants to split it, half the amount is $863.57. Obviously it would only cover it once. Whether it be a joint and several liability in effect. Might be easier to make it just as one sum and we can decide how to recover it.
Her Honour: Okay.
…
Her Honour: I'm going to make the additional penalty of the costs, but those costs are jointly and severally liable. So it's not a doubling up. It's just that they can work out how to pay those costs off.[24]
[24] ts 19 January 2024, 10, 14.
The appellant has cited no authority for the position that the amount the subject of an order pursuant to s 55(2)(f) is one for which the parties are 'jointly and severally liable'. Having regard to s 56, which permits for the apportionment of similar orders, I am not presently satisfied that the parties are 'jointly and severally liable' for the additional amount. However, it is not strictly necessary for me to determine that issue in this case.
On 31 January 2024, at the same time as the original penalty recorded on each of the prosecution notices was amended, the order for reimbursement was amended to one half of that originally recorded. In this regard, it is relevant to note that the amount of costs payable in each case was also reduced by half.
When the learned magistrate made the order for the reimbursement against each of the respondents, the subsequent Notices of Conviction which were sent to the respondents (and which were sent to the court attached to the correspondence from the respondents' solicitor dated 30 January 2024) required each of the respondents to pay the whole sum.
It is apparent that the manner in which such orders were recorded by the court system did not allow for an order to be recorded as a result of which the parties were to be jointly and severally liable for the amount, even if this were the true state of affairs.
It is also apparent that the amounts ordered to be reimbursed were recorded by the court system as an 'additional penalty' for which the Fines Enforcement Registry took responsibility for collection. Given that the order is one for reimbursement, this means of recording the order seems to be inappropriate. However, I was informed that there is presently no accurate way of recording an order for reimbursement under the Animal Welfare Act.
Having regard to the steps the learned magistrate took in relation to the original fine and the costs order, the only reasonable conclusion is that her Honour, having seen the Notices of Conviction, sought to give effect to her intention that the totality of the financial penalties she imposed on the respondents and the reimbursement order was to be divided between them, not imposed upon each of them. Having regard to the options open to her Honour, because of the limitations of the court recording system, this seemed to be the only reasonable approach.
In my view, pursuant to s 37(3) and s 37(5) of the Sentencing Act, it was open to the learned magistrate to correct the order to ensure that her intention was given effect.
I am not satisfied that error has been established.

Ground 4

By ground 4, the appellant effectively contends that the prohibition order recorded by the learned magistrate does not reflect the order made.
At first instance, counsel for the prosecution submitted that the prohibition order made pursuant to s 55(2)(a) of the Animal Welfare Act should state:
The offender not be in charge of an animal (as that term is defined in s 5 of the Animal Welfare Act) for a period of 6 months.
The learned magistrate appeared to accept the submission. However, her Honour noted that the orders were not on the 'template' - apparently the manner in which orders are recorded made it difficult and time consuming to divert from the template provided by the court system.[25]
[25] ts 19 January 2024, 16.
The prosecution notice does not, however, record the order in the terms accepted by her Honour. It simply records:
Prohibited from Contact with Animals 6M from 19-Jan-2024
The prosecution had not sought an order prohibiting the respondents from having 'contact' with animals. Such an order would be unreasonably broad and practically impossible to enforce. It would also be unduly onerous on the respondents, who would be liable to breach the order even when incidentally or inadvertently coming into contact with an animal.
What is apparent is that, despite the learned magistrate indicating that she proposed to make the order in the terms as sought, for some reason the court order recorded defaulted to the template order. The order made by her Honour is accordingly not what appears on the prosecution notice.
In those circumstances, I am satisfied that the order should be amended to reflect the order actually made by the learned magistrate, and as submitted by the prosecution. I will uphold ground 4.

Orders

(1)Extension of time within which to appeal granted.
(2)Leave to appeal is granted on grounds 1, 2, 3 and 4.
(3)Appeal allowed on grounds 1, 2 and 4.
(4)The appeal on ground 3 is dismissed.
(5)The respondents are each resentenced to a fine of $2,000.
(6)The prohibition order is amended to be in the following terms:
The offender not be in charge of an animal (as that term is defined in s 5 of the Animal Welfare Act 2002 (WA)) for a period of 6 months.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
29 JULY 2024