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Pagnoni v Jones

Pagnoni v Jones

Case [2023] WASC 356 22 September 2023

Natural Justice & Procedural Fairness

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PAGNONI -v- JONES [2023] WASC 356
CORAM:   HOWARD J
HEARD:   5 SEPTEMBER 2023 (AND FURTHER WRITTEN SUBMISSIONS ON 12 SEPTEMBER 2023)
DELIVERED          :   22 SEPTEMBER 2023
FILE NO/S:   SJA 1037 of 2023
BETWEEN:   SONIA PAGNONI
Appellant
AND
NICHOLAS IAN JONES
Respondent

ON APPEAL FROM:
For File No:   SJA 1037 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE A. HILLS-WRIGHT
File Number            :   FR 7372 OF 2022

Catchwords:

Criminal law - Appeal against conviction - Contravention of local government law - Feeding birds in a non-rodent proof receptacle - Whether Magistrate failed to adjourn hearing - Whether Magistrate failed to grant a spent conviction order - Whether the failure to grant a spent conviction resulted in a miscarriage of justice - Whether the fine imposed was manifestly excessive - Whether combined costs and fine imposed were disproportionate to the offending - Appeal allowed - Appellant re‑sentenced - Granted a spent conviction order - Costs substituted

Legislation:

City of Cockburn Health Local Laws 2000
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Sentencing Act 1995 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	Mr J Jackson
Respondent	:	Mr N P Sloan

Solicitors:

Appellant	:	James Jackson Criminal Defence
Respondent	:	McLeods

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

Basham v City of Joondalup [No 2] [2016] WASC 120
Brewer v Bayens [2002] 26 WAR 510
Comptroller-General of Customs v C [2020] WASC 290
Delopez v Darry [2014] WASC 370
GNR vThe State of Western Australia [2015] WASCA 5
House v R (1936) 55 CLR 499.
Hull v Castledine [2005] WASC 252
JAD v McRae [2022] WASC 220
Naso v Danehill Nominees Pty Ltd [2006] WASC 265
Redding v Robinson (2009) WASC 403
Rendell v Douglas [2015] WASC 36
Saad v Baron [2012] WASC 507
Samuels v State of Western Australia (2005) 30 WAR 473
Sharpe v Vinning [2020] WASCA 79

HOWARD J:

The appellant's conviction

On 3 March 2023, the appellant was convicted in the Magistrates Court at Fremantle of contravening s 56(b) of the City of Cockburn Health Local Laws 2000 by between 18 March 2022 and 28 October 2022 placing at an address in Hamilton Hill food intended for birds without the food being contained in a rodent-proof receptacle or compartment which was effectively protected against access by rodents.
The appellant was not present at Court on 3 March 2023. She had indicated by letter to the Magistrates Court dated 15 November 2022 that, effectively, she was pleading not guilty to the charge.
The learned Magistrate proceeded in the appellant's absence under s 55(2)(b) of the Criminal Procedure Act 2004 (WA).
After a hearing which, from the transcript, appears to have lasted 15 minutes, the learned Magistrate convicted the appellant, imposed a $650 fine and awarded $2,500 in costs in favour of the prosecutor.

Grounds of Appeal

The appellant's two grounds initially were:
1.the appellant suffered a miscarriage of justice due to…

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 Pagnoni v Jones

Details

AGLC: Pagnoni v Jones [2023] WASC 356
Case: [2023] WASC 356
Decision Date

CaseChat Overview and Summary

The appeal in Pagnoni v Jones was heard by Howard J of the Supreme Court of Western Australia. The appellant, Sonia Pagnoni, appealed against her conviction and sentence for contravening the City of Cockburn Health Local Laws 2000 by placing bird food without using a rodent-proof receptacle. The appeal was heard out of time and on multiple grounds. The primary issues were whether the learned Magistrate erred in not adjourning the trial, failing to grant a spent conviction order, imposing an excessive fine, and awarding disproportionate costs.

On Ground 1, the Court found no error in the Magistrate proceeding in the appellant's absence. Ground 2 was allowed in part as the Court found the Magistrate erred in not considering a spent conviction order, though no substantial miscarriage of justice occurred. Ground 3 was upheld as the Court found the failure to grant a spent conviction resulted in a miscarriage of justice. Ground 4 was also upheld as the Court found the fine imposed was manifestly excessive. Finally, Ground 5 was upheld as the Court found the combined fine and costs were grossly disproportionate to the criminality. The Court set aside the original sentence and costs, re-sentenced the appellant to a $200 fine, granted a spent conviction order, and substituted costs of $450 in favour of the respondent. The Court also noted that the total burden of $650 on the appellant, while still significant, was appropriate in the circumstances.

Orders