Nang & Associates Pty Ltd v Chan - [2022] WASC 12

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   NANG & ASSOCIATES PTY LTD -v- CHAN [2022] WASC 12
CORAM:   ARCHER J
HEARD:   28 JUNE 2021 AND 23 AUGUST 2021 WITH FURTHER SUBMISSIONS AND EVIDENCE UP TO 21 OCTOBER 2021
DELIVERED          :   19 JANUARY 2022
FILE NO/S:   SJA 1098 of 2020
BETWEEN:   NANG & ASSOCIATES PTY LTD
Appellant
AND
MICHAEL CHAN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE K TAVENER
File Number            :   MI 3334/2020

Catchwords:

Criminal law - Appeal against sentence - Regard to avoided premiums amount over period of time longer than offending period - Claim of manifest excess - Turns on its own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 170

Result:

Application for leave to extend time within which to appeal granted
Application for leave to appeal granted in relation to ground 3 only
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr Z Tomich
Respondent	:	M McIlwaine

Solicitors:

Appellant	:	Proven Legal
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Al Hussein v Commissioner for Consumer Protection [2014] WASC 296
Ayton v City of Armadale [2020] WASCA 39
Castrilli v Western Australia [2019] WASC 135
Crocker v Vinicombe [2019] WASC 416; (2019) 279 A Crim R 529
Director of the Public Prosecutions of the State of Victoria v Dagliesh (A Pseudonym) [2017] HCA 41; (2017) 262 CLR 428
Gaskell v The State of Western Australia [2018] WASCA 8
Green v R [2011] HCA 49; (2011) 244 CLR 462
Harding v The State of Western Australia [2015] WASCA 27
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hunter v City of Joondalup [2015] WASC 444
Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586
Jacomb v The State of Western Australia [2021] WASCA 81
Joseph v Worthington [2018] VSCA 102; (2018) 272 A Crim R 292
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Marks v R [1937] HCA 21; (1937) 57 CLR 58
Ninyette v Holmes [2015] WASC 287
R v Industrial Appeals Court; Ex parte Barelli's Bakeries Pty Ltd [1965] VR 615
R v Pham [2015] HCA 39; (2015) 256 CLR 550
RO v R [2019] NSWCCA 183
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5
Sgroi v R (1989) 40 A Crim R 197
Snowball v McDonald [2019] WASC 108
Strahan v Brennan [2014] WASC 190
Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139
The State of Western Australia v Zhuang [2021] WASCA 56
Trinder v Anderson (Unreported, WASC, Library No 960216, 24 April 1996)
Tsang v Francis [2021] WASCA 131
Wheeler v The Queen [No 2] [2010] WASCA 105, 10
Willenberg v Downey [2015] WASC 282
Wilson v The State of Western Australia [2010] WASCA 82

ARCHER J

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.

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Details

Case: [2022] WASC 12
Decision Date

CaseChat Overview and Summary

The appellant, Nang & Associates Pty Ltd, appeals against the sentence imposed on it by the Magistrates Court. The appellant pleaded guilty to failing to obtain and maintain a current policy of workers' compensation insurance for the period of 30 June 2018 to 17 October 2019. It was fined $35,000, and ordered to pay $16,253.16, being the sum equal to the total insurance premiums avoided, to the 'General Account'. The appeal raises three issues: whether the fine was manifestly excessive, whether the fine infringed the totality principle, and whether the magistrate erred in having regard to the amount of the avoided premiums in assessing the seriousness of the offence. The appeal was dismissed. The magistrate had erred in taking into account the amount of the avoided premiums in determining the seriousness of the offence. However, there was no miscarriage of justice. If the court was to exercise the sentencing discretion afresh, it would not impose a lesser penalty. A fine which equated to only 5.6% of the maximum penalty was plainly within the range of an appropriate disposition. Indeed, on the material available to the magistrate, the fine was considered to have been lenient.

Orders