Nang & Associates Pty Ltd v Chan

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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

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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.

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