Kanawati v L'Haridon Bight Mining Pty Ltd [No 2]
[2023] WASC 304
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KANAWATI -v- L'HARIDON BIGHT MINING PTY LTD [No 2] [2023] WASC 304
CORAM: STRK J
HEARD: 10 AUGUST 2023
DELIVERED : 10 AUGUST 2023
FILE NO/S: SJA 1021 of 2021
BETWEEN: MAHAMMED SALIM KANAWATI
Appellant
AND
L'HARIDON BIGHT MINING PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE E DE VRIES
File Number : CA 708/2019
Catchwords:
Criminal law - State appeal against sentence - Respondent resentenced - Fine imposed
Legislation:
Criminal Appeals Act 2004 (WA)
Mines Safety and Inspection Act 1994 (WA)
Mines Safety and Inspection Regulations 1995 (WA)
Sentencing Act 1995 (WA)
Result:
Respondent resentenced
Category: B
Representation:
Counsel:
| Appellant | : | J T Bishop |
| Respondent | : | M Crispe |
Solicitors:
| Appellant | : | State Solicitor's Office |
| Respondent | : | Max Crispe |
Case(s) referred to in decision(s):
Al Hussein v Commissioner for Consumer Protection [2014] WASC 296
C E Oates & Sons Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144
Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586
Kanawati v L'Haridon Bight Mining Pty Ltd [2023] WASC 262
Wilson v McDonald [2009] WASCA 39 (S)
STRK J:
(This judgment was delivered extemporaneously on 10 August 2023 and has been edited from transcript to correct infelicity of language and to include complete references in the form of footnotes.)
For the reasons delivered on 17 July 2023, it was determined that the State's appeal should be allowed and the respondent resentenced: Kanawati v L'Haridon Bight Mining Pty Ltd [2023] WASC 262. I formed the view that I was in as good a position to re‑exercise the sentencing discretion as a magistrate would be on remittal. I indicated that I would hear from the parties as to the resentencing of the respondent, among other things, affording the respondent an opportunity to be heard in relation to its current financial circumstances.[1] These reasons should be read with my earlier reasons.
[1] Kanawati v L'Haridon Bight Mining Pty Ltd [108].
Submissions
For the purpose of resentencing, counsel for the respondent reads the affidavit of Joseph James Hawkins, a director of the respondent, sworn on 26 July 2023. Among other things, Mr Hawkins deposes that he is a director of the respondent and has been a director of the respondent for approximately 15 years; to Nexia Australia having been the respondent's accountant for more than 10 years; and to having contacted Nexia Australia and requesting that Nexia Australia prepare a profit and loss statement for the respondent for 2021, 2022 and 2023.
Attached to Mr Hawkins' affidavit and marked 'A' is a profit and loss statement for the respondent. As I read the attached document, it records the profit and loss for the respondent for the financial years ending 30 June 2021, 30 June 2022 and 30 June 2023. I understand from Mr Hawkins' affidavit that the data contained in the attached document was extracted by Nexia Australia from their accounting system for the respondent.
On behalf of the respondent counsel accepted that capacity to pay is one of a number of factors to be taken into account in resentencing the respondent, and sought to give context to the respondent's profit and loss statement. Counsel noted that the respondent operates a small business, and there are no office or administration facilities at the Shell Beach Mine. Two people work there and travel 50 kilometres to and from the Shell Beach Mine each day. A related company attends to all administration. Counsel also noted that the profit and loss figures were impacted in 2021 by the COVID‑19 pandemic.
After referring to the net profit of the business, counsel described the business of the respondent as being one that was slowly succeeding. Counsel otherwise referred to my earlier reasons and the relevant points there referenced.[2]
[2] ts 41 (10 August 2023).
For the purposes of resentencing, counsel for the appellant indicated that the appellant's position remains quite similar to what it was previously, and noted that the court had in the earlier reasons for decision referred to the decision of Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586 as to the weight to be given to capacity to pay when deciding the amount of a fine.[3]
[3] Kanawati v L'Haridon Bight Mining Pty Ltd [59].
As to the profit and loss statements before the court, the appellant accepted that the statements could be taken into account when resentencing the respondent, but submitted that they do not give a complete picture of the respondent's capacity to pay and the documents do not allow the court to conclude that the respondent does not have capacity to pay.[4]
[4] ts 40 - 41 (10 August 2023).
Disposition
In resentencing the respondent, I have considered the objects of the Mines Safety and Inspection Act 1994 (WA), as they were at the time of the offence; that pursuant to s 9(1) of the Mines Safety and Inspection Act, the respondent had a duty, so far as was practicable, to provide and maintain at a mine a working environment in which that respondent's employees were not exposed to hazards; that the maximum fine applicable to the respondent at the time of the offence for a first offence involving a contravention of s 9(1) of the Mines Safety and Inspection Act causing death or serious harm was $400,000; and that the phrase 'serious harm' was relevantly defined in s 4(4) of the Mines Safety and Inspection Act to mean a bodily injury of such a nature as to endanger, or be likely to endanger, the person's life, or to result or be likely to result in permanent injury or harm to the person's health.
In resentencing the respondent, I have applied the sentencing principles in the Sentencing Act 1995 (WA), which I briefly summarised at [56] to [64] of my earlier reasons. I also approach this matter having regard to the general principles and guidelines for sentencing under the Mines Safety and Inspection Act as described at [65] to [68] of my earlier reasons.
In resentencing the respondent, I have considered the circumstances of the offending and the seriousness of the injury sustained by Mr Peak (as detailed in my earlier reasons). I remain cognisant that the potential consequences of the breach of duty on the part of the respondent in this case were both severe and readily foreseeable. The very fact that the shell bagging machine ordinarily had a fixed guard to protect those using it from harm makes such a conclusion inevitable. Further, the failure on the part of the respondent to take steps to avoid such an obvious risk involved a relatively high level of disregard for the safety of its employees.[5]
[5] Kanawati v L'Haridon Bight Mining Pty Ltd [69].
As was noted at [77] of my earlier reasons, having regard to the nature of the breach, the potential risk posed by the breach, and the actual outcome of the breach, I consider the respondent's offending to be in mid‑range on the scale of seriousness for an offence of this kind.
I take into account the need for specific and general deterrence, the various mitigating factors (as detailed in my earlier reasons); and the fact that there is no established tariff or range for sentences for this offence. I remain cognisant of the fact that the relevant sentencing band under which the respondent falls to be sentenced is intended to encompass a very wide range of conduct and consequence, limited only by being a first offence by a corporation of any breach of duty, other than by gross negligence, which causes death or serious harm to an employee. I also have regard to the cases identified by the parties and discussed in my earlier reasons at [88] to [100].
I have regard to the relatively early guilty plea of the respondent, and have reduced the sentence I would otherwise have imposed by 20% in recognition of that plea. As was noted at [84] of my earlier reasons, the plea was also, in the circumstances, demonstrative of an acceptance of responsibility, and remorse.
Section 53 of the Sentencing Act requires the court to take into account the respondent's means and the extent to which payment of the fine will burden it as far as practicable. Even if the court is unable to find out that information, the court may impose a fine.
In considering the means of the respondent, and the extent to which it will be burdened by the fine, I have had regard to Mr Hawkins' affidavit. The document attached to his affidavit discloses the respondent made a gross profit in 2022-23 of $264,068 (after deducting costs of sales, including fuel and oil, transport, royalties and wages), and a net profit of $23,089.
Again, it is difficult, without more, to make a proper assessment of a company's means to pay a fine on the basis of the respondent's profit and loss statement such documents alone. The profit and loss statement shows that by far the greatest operating expense of the respondent in the last three financial years was 'management fees', being $74,400 in 2020‑21, $110,400 in 2021‑22 and $159,544 in 2022‑23. Mr Hawkins deposes in his affidavit that management services are outsourced to another company, JJ Hawkins & Co Pty Ltd. As the name suggests, counsel confirmed that management services are provided to the respondent by a related entity.
Despite the limited information that might be discerned from Mr Hawkins' affidavit, I take into account the respondent's modest net profit last financial year in imposing sentence while remaining cognisant that the sentence must be commensurate to the seriousness of the offence.[6] I have also not overlooked the fact that a fine is a punishment and is intended to be a burden on the offender to give effect to appropriate sentencing principles of punishment and general and personal deterrence.[7] I further note that the legislative regime provides a mechanism by which an offender may apply for a time to pay order in respect of the fine, which can ameliorate the immediate effects of a heavy fine.[8]
[6] Kanawati v L'Haridon Bight Mining Pty Ltd [59], citing Hussaini v Szolnoski [25] - [26].
[7] Al Hussein v Commissioner for Consumer Protection [2014] WASC 296 [16], cited in Kanawati v L'Haridon Bight Mining Pty Ltd [60].
[8] See the Fines Penalties and Infringement Notices Enforcement Act 1994 (WA) s 32(1); Al Hussein v Commissioner for Consumer Protection [11]; and C E Oates & Sons Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144 [90], cited in Kanawati v L'Haridon Bight Mining Pty Ltd [61].
In all of the circumstances, I consider the appropriate fine to be $48,000.
Costs of the appeal
Section 14(1)(h) of the Criminal Appeals Act 2004 (WA), permits the court to make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction. The provisions of the Criminal Appeals Act in respect of costs should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. Rather, the Criminal Appeals Act should be construed as conferring a general and unconstrained discretion with respect to the award of costs in relation to an appeal from a magistrate, to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest.[9]
[9] Wilson v McDonald [2009] WASCA 39 (S) [10] (Martin CJ, Beech AJA agreeing).
Counsel for the appellant moved for an order with respect to its costs as particularised in a bill of costs, for a total sum of $6,886. The respondent consented to an order in favour of the appellant in the amount claimed, and I will make that order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RW
Associate to the Honourable Justice Strk
10 AUGUST 2023
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