JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SCHERINI -v- CLEVELAND FREIGHTLINES PTY LTD [2018] WASC 5
CORAM: FIANNACA J
HEARD: 29 MAY 2017
DELIVERED : 15 JANUARY 2018
FILE NO/S: SJA 1002 of 2017
BETWEEN: ALLAN SCHERINI
Appellant
AND
CLEVELAND FREIGHTLINES PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R HUSTON
File No :PE 10758 of 2016, PE 10759 of 2016, PE 10760 of 2016, PE 10761 of 2016, PE 10762 of 2016, PE 10763 of 2016, PE 10764 of 2016, PE 10765 of 2016, PE 10766 of 2016, PE 10767 of 2016, PE 10768 of 2016, PE 10769 of 2016, PE 10770 of 2016, PE 10772 of 2016, PE 10773 of 2016
Catchwords:
Occupational Health and Safety - Manifestly inadequate fine
Legislation:
Corporations Act 2001 (Cth)
Criminal Appeals Act 2004 (WA), s 8, s 10
Electricity (Licensing) Regulations 1991 (WA)
Occupational Safety and Health Regulations 1996 (WA)
Road Traffic Act 1961 (SA)
Road Traffic (Heavy Vehicle Driver Fatigue Regulation) 2008 (SA)
Road Transport (General) Regulations 2005 (NSW)
Sentencing Act 1995 (WA)
Result:
Leave to appeal granted
Appeal granted
Category: B
Representation:
Counsel:
Appellant: Ms H Richardson
Respondent: Mr H Quail
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: D G Price & Co
Cases referred to in judgment:
Beydoun v City of Stirling [2015] WASC 25
BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267 (S)
CE Oates & Sons Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144
Department of Planning, Transport and Infrastructure v Bridgart [2014] SASC 112
Department of Planning, Transport and Infrastructure v Brown [2014] SASC 113
Department of Planning, Transport and Infrastructure v Favotti [2014] SASC 103
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Fenton v The State of Western Australia [2015] WASCA 255
Forkin v The State of Western Australia [2013] WASCA 51
Goddard v City of Stirling [2009] WASC 28
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kershaw v The State of Western Australia [2014] WASCA 111
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mack v The State of Western Australia [2014] WASCA 207
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Morrison v Competitive Foods Ltd t/a Hungry Jacks (Unreported, WASC; Library No 9118, 25 October 1991)
Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154
Nannup v The State of Western Australia [2011] WASCA 257
Nembousse v The State of Western Australia [2015] WASCA 68
Palfrey v Spiteri [2014] NSWSC 842
R v Tait (1979) 46 FLR 386
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
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- Case
- [2018] WASC 5
- Decision Date
CaseChat Overview and Summary
The court found that the characterisation of the respondent's business as a small business and a small private company was not an error of fact that materially affected the outcome. While the court acknowledged that the size of the business or company could have been relevant in assessing the respondent's capacity to pay a fine, it was not clear that the magistrate had made any findings about the respondent's capacity to pay a fine or the extent to which payment of any particular fine would burden the respondent. The court noted that the magistrate had stated that the fines imposed were a significant amount of money in the context of a small, private company, but this did not necessarily mean that the magistrate had taken the size of the business into account when imposing the fines.
The court held that the magistrate had not made an erroneous finding about the respondent's capacity to pay a fine. While the court acknowledged that the characterisation of the respondent's business as a small business and a small private company could have been relevant in assessing the respondent's capacity to pay a fine, it was not clear that the magistrate had made any findings about the respondent's capacity to pay a fine or the extent to which payment of any particular fine would burden the respondent. The court found that the appeal should be dismissed.
The court did not make any orders in relation to the appeal. The fines imposed by the Magistrates Court of Western Australia remained in place.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Section 53 of the Sentencing Act1995 (WA) provides relevantly:53. Considerations when imposing fine(1)Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account ‑(a)the means of the offender; and(b)the extent to which payment of the fine will burden the offender.(2)A court may fine an offender even though it has been unable to find out about the matters in subsection (1).The section contemplates that the court will enquire about the means of the offender and the extent to which payment of a fine will be a burden. In my respectful opinion, a submission from counsel that a particular level of fine will be a 'significant penalty' and will be 'far beyond an operating expense' falls well short of the information a court would require to find out the offender's means and the extent to which payment of a fine would be a burden. Of course, one should not lose sight of the busy nature of the summary jurisdiction, which will often put constraints on the time available for such information to be made available. However, when, as in this case, specific time has been allocated for the sentencing, and written submissions and a large amount of documentary material has been provided to the sentencing court, one would expect that information about the offender's means would be sought by the court and would be included in the materials, particularly if a submission is made in mitigation that a penalty will be significant for the offender. That is especially so, it seems to me, when the court has expressed concerns about whether the offender appreciates the seriousness of the offending. Ground 1, in its terms, does not allege that the magistrate made an erroneous finding about the respondent's capacity to pay a fine. However, if the magistrate made the error of fact alleged by the appellant, the ground would succeed if it materially affected the outcome. The issue is whether the magistrate's characterisation of the respondent's business as 'a small business' and of the respondent as a 'small private company' led to any finding about the respondent's capacity to pay a fine and the extent to which payment of any particular fine would burden the respondent. More specifically, did it result in the magistrate reducing the penalty he would otherwise have considered appropriate, having regard to the seriousness of the offending? Counsel for the respondent conceded that the only manner in which findings about the size of the business or the company could have been relevant was in respect of the respondent's capacity to pay a fine. In fact, the respondent's submission was that:[24][t]he court's finding that the respondent was a small private company was clearly relevant to the assessment of the company's capacity to pay a fine and influenced the magistrate in calculating the total fine imposed.With respect, while the first part of that concession may be accepted, the correctness of the second part is far from clear when one has regard to the passage in which his Honour used the description. It is convenient to reproduce the passage again. Having stated the total of the fines imposed, his Honour said:[25]Now, that, in the context of a small, private company is a significant amount of money. It would have been and I can make it quite clear to the company today, that but for the changes that have been made, but for the keenness that has been demonstrated today by the changes and the fact that there hasn't been any new offending in a prosecution sense, the fines would have been substantially more today but for those changes.[24] Respondent's Outline of Submissions dated 23 May 2017 [9].[25] Appeal Book, 62.