Younger v Burswood Nominees Pty Ltd T/As Burswood International Resort Casino - [2002] WASCA 36

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: YOUNGER -v- BURSWOOD NOMINEES PTY LTD T/AS BURSWOOD INTERNATIONAL RESORT CASINO [2002] WASCA 36

CORAM: McLURE J

HEARD: 29 JANUARY 2002

DELIVERED : 26 FEBRUARY 2002

FILE NO/S: SJA 1173 of 2001

BETWEEN: RAYMOND ALEXANDER YOUNGER
Appellant
AND
BURSWOOD NOMINEES PTY LTD T/AS BURSWOOD INTERNATIONAL RESORT CASINO
Respondent

Catchwords:

Sentence - Body corporate - Whether s 40(5) of the Sentencing Act applies to a body corporate in breach of s 27(1) of the Casino Control Act - Whether a statutory penalty is expressly provided for a body corporate

Legislation:

Casino Control Act 1984 (WA), s 3, s 19(2)(b), s 21, s 21E, s 21F, s 24(3), s 27(1), s 27(1a), s 30(2) and s 33

Dangerous Goods (Transport) Act 1988 (WA), s 34
Interpretation Act 1984 (WA), s 37(1), s 68, s 69(3) and s 70

Sentencing Act 1995 (WA), s 9(2), s 40(1) and s 40(5)

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr D J Matthews
Respondent: Mr B D Luscombe

Solicitors:

Appellant: State Crown Solicitor
Respondent: Mallesons Stephen Jaques

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

Nil

Case(s) also cited:

Beckwith v The Queen (1976) 135 CLR 569

McLURE J:

Introduction

The respondent was convicted on 8 October 2001 of one charge of contravening s 27(1) of the Casino Control Act 1984 (WA) (the "Act"). The respondent is the licensee of the Burswood Casino.
The learned Magistrate held that the maximum fine for the offence was that stated in s 27(1) of the Act, being $5,000 having regard to the targeted nature of the legislation. He imposed a penalty of $500.
The appellant relies upon one ground of appeal being:
"The learned Magistrate erred in finding that section 40(5) of the Sentencing Act 1995 did not apply to make the maximum fine available under section 27(1) of the Casino Control Act 1984 in relation to a body corporate convicted of an offence under that section an amount of $25,000."

Sentencing Act 1995 (WA)

Section 40 of the Sentencing Act applies to an offender that is a body corporate: s 40(1). Subsection 5 of s 40 provides:
"Except where a statutory penalty is expressly provided for a body corporate, a body corporate that is convicted of an offence the statutory penalty for which is or includes a fine is liable to a fine of 5 times the maximum fine that could be imposed on a natural person convicted of the same offence."
Where a statutory penalty for an offence is a fine of a particular amount then that is the maximum penalty that may be imposed for that offence: s 9(2) of the Sentencing Act.
Sections 68, 69(3) and 70 of the Interpretation Act 1984 (WA) (which dealt with offences and penalties) were repealed as a consequence of the enactment of the Sentencing Act.

The Casino Control Act 1984 (WA)

Section 27(1) of the Act provides:
"A casino licensee and any other person concerned in the organization or management of the gaming operations of the licensed casino concerned shall ensure that no person under the age of 18 years is permitted to enter or remain in that casino, unless subsection (4) applies.
Penalty: $5 000."
Section 27(1) of the Act was amended by the Acts Amendment (Casino Control) Act 1987(WA) ("1987 Amendment Act") to insert after "casino licensee" the general words "any other person concerned in the organization or management of the gaming operations of the licensed casino".
The Second Reading Speech to the 1987 Amendment Act gives no indication of why the words were added. The primary purpose of the 1987 Amendment Act was to facilitate the sale of the Burswood Hotel.
Section 27(1a) is similar in structure to s 27(1) of the Act. It places an obligation on a casino licensee and any other person concerned in the organisation or management of the gaming operations of the licensed casino concerned to ensure that no person under the age of 18 years is permitted to participate in gaming in that casino. The penalty is stated to be $5,000.
Section 27(1a) was inserted by the Acts Amendment (Gaming) Act 1998 ("1998 Amendment Act"). The respondent relied on the Second Reading Speech for the 1998 AmendmentAct in support of its submissions. The Speech provides:
"The Bill also creates an offence if a casino licensee or any other person concerned in the organisation or management of casino operations, permits a person under the age of 18 years participating, as a player, in any game at the casino. A new penalty of $5,000 has been included if the casino licensee is convicted of this offence."
The term "casino licensee" is defined in s 3 of the Act to mean the holder or person deemed to be the holder of a casino gaming licence granted under s 21 of the Act. Section 21 of the Act limits potential applicants to "a public company which is a party to a casino complex agreement" pursuant to s 19 of the Act.
However, an administrator appointed under s 21E of the Act is deemed to be the holder of a casino gaming licence: s 21E(4) of the Act. There is no statutory requirement for an administrator to be a body corporate. An administrator may be a natural person. Thus, a casino licensee as defined may be a body corporate or a natural person.
In addition, the Act makes provision for the approval of the appointment of a receiver to a holder of a casino licence and for the transfer of a casino licence: s 21F of the Act.
The parties differed on the scope of the words "any other person concerned in the organisation or management of the gaming operations of the licensed casino concerned". The appellant submitted that it would include the natural persons and bodies corporate referred to in s 19(2)(b) of the Act. That section is concerned with the fitness of:
"(i)each natural person; and
(ii)each director or other member of the governing body of, and each principle officer of, a body corporate,
intended by the public company, or believed by the Commission, to be concerned in or associated with the organization and conduct of the gaming operations of the licensed casino …"
The language in s 19(2)(b) is different from and wider in scope than s 27(1) of the Act. Unlike s 27(1), s 19(2)(b) employs the additional connector "associated with" and refers to the "conduct" of gaming operations.
The respondent submitted that s 27(1) is confined to the casino licensee and an administrator or receiver appointed under s 21E or s 21F of the Act. In support of its submission the respondent relied on the fact that the Act variously refers to a "casino key employee" (a person employed or working in a managerial capacity in a licensed casino), a "casino employee" (other persons employed or working in a licensed casino) and a person acting under the licensee's authority. The broadest coverage is seen in s 24(3) which materially provides:
"A casino licensee shall ensure that any direction … is brought to the notice of, and is not contravened by, any person who is responsible for the organization or management of gaming operations at the casino complex concerned or any other person or body, corporate or unincorporate, acting in relation to those gaming operations as an employee, agent or otherwise on behalf of, or subject to the control of, the casino licensee."
The respondent's construction of s 27(1) is unjustifiably narrow. The general words encompass persons (whether a body corporate or natural person) who have managerial responsibilities for the gaming operations. That category may include workers who also fall in other categories such as that of "casino key employee".
However, it is unnecessary for the purpose of disposing of this appeal to determine the precise parameters of the persons on whom the obligations in s 27(1) fall. Whatever be its exact scope it is clear the subsection could be breached by a number of natural persons or bodies corporate.
Section 27(1) does not in its terms distinguish between the penalty for a body corporate and a natural person. This is to be contrasted with s 30(2) and s 33 of the Act. Section 30(2) materially provides:
"(2)Any casino licensee, or any casino key employee, casino employee or other person concerned in the organization or management of gaming operations in a casino, who in the casino conducts any game in such a manner as to win or attempt to win from any person for himself or for any other person any money, tokens, prize, benefit or other valuable thing by –
(a)any fraud;
(b)any fraudulent means;
(c)any machine, equipment or thing that permits or facilitates, or is intended to permit or facilitate, fraud, cheating or stealing; or
(d)any wrongful practice, trick or scheme,
commits an offence.
Penalty: In the case of a person other than a body corporate, $10 000, or imprisonment for 2 years, or both; and in the case of a body corporate, $20 000."
Section 33 of the Act provides:
"Where –
(a)the casino licensee; or
(b)a person to whom or which section 24(3) refers;
contravenes any direction (notwithstanding that the direction does not have legislative effect) made under this Act the person commits an offence.
Penalty: In the case of a person other than a body corporate, $2 000; and in the case of a body corporate, $5 000."
Section 30(2) and s 33 of the Act are clear examples where a statutory penalty is expressly provided for a body corporate. In each case, the fine for a body corporate is significantly less than five times the fine for a natural person provided for in s 40(5) of the Sentencing Act.

Analysis

The appellant says that the requirement in s 40(5) of the Sentencing Act for the "express" provision of a statutory penalty for a body corporate means the legislation must contain a definite statement of the penalty for a body corporate as in s 30 and s 33 of the Act. Examples of the same or similar drafting approaches can be seen in various other statutes including the Dangerous Goods (Transport) Act 1998 (s 34).
It is the case that the natural and ordinary meaning of the word express is "declared in terms" or "set forth in words" and is usually contrasted with implied. How then is the requirement for an "express" provision to be accommodated with the usual principles of statutory construction where the task of the court is to discern the parliamentary intention and purpose from (inter alia) the statutory language of the relevant Act as a whole, notwithstanding any ambiguity or lack of clarity.
In my view, any tension is to be resolved in this way. The purpose of the Sentencing Act is to consolidate the sentencing laws to provide uniformity and consistency in approach regardless of the statutory source of the liability or penalty. It is an umbrella Act. Although it bears some similarities to the role performed by the Interpretation Act 1984 it goes further in some respects. The intention and effect of s 40(5) is to displace the general principles of construction by providing that the general rule on penalties for bodies corporate can only be displaced expressly. The language of s 40(5) is to be contrasted with the phrase "unless the contrary intention appears" which is used, for example, in s 37(1) of the Interpretation Act.
Thus, if the general rule in s 40(5) is to be excluded, it must be done in terms or perhaps, at its lowest, by necessary effect. The limited or targeted range of persons affected by a statutory provision for which a penalty is imposed is not itself sufficient to oust the application of s 40(5) of the Sentencing Act.
Where, as here, the statutory obligation is imposed on more than one person by reference to their role in relation to the casino and not by reference to their status as a body corporate (or otherwise) and which can potentially apply to both natural persons and bodies corporate then it cannot be said that the statutory penalty in s 27(1) is expressly provided (in terms or effect) for a body corporate.
For these reasons the appeal will be allowed and the penalty imposed by the Magistrate set aside. The complaint will be remitted to the Court of Petty Sessions at Perth to be dealt with in accordance with these reasons.