PLAINTIFFS ALLEGE THAT PENALTY IMPOSED UPON THEM IS EXCESSIVE

Lopes v Cook [2020] NSWSC 1776 (9 December 2020)

This case involves the plaintiffs alleging that the penalty imposed upon them is excessive and that the court did not take into account the individual circumstance of each plaintiff.

Facts:

Ana Lopes, Peter Maresch, Charlize Reynierse, Catherine Smith, Maria Veira and Andrew Faulkner (the plaintiffs) appeal against their convictions for the offence of entering inclosed lands and, while there, interfering with a business, contrary to s 4B(1)(a) of the Inclosed Lands Protection Act 1901.

The plaintiffs entered an inclosed farm, which included a shed that accommodated many egg-laying hens. They disrupted the business by seizing a few chickens and running away with them. They were arrested while still within the inclosed land.

The plaintiffs raise two grounds of appeal against sentence: first, that the sentences were manifestly excessive; and, secondly, that the Court below erred by not taking into account the individual circumstances of each plaintiff.

Mr Singleton (Counsel of the plaintiffs) submitted that, although each of the plaintiffs had “equal involvement” in their common offence, the Court below erred by imposing the same fine on each of them without regard to the differences in their financial capacity to pay.

Issue: Is the sentence excessive?

Law:

• Crimes (Appeal and Review) Act 2001 ss 52, 53, 55, 72
• Crimes (Sentencing Procedure) Act 1999 ss 9,10,17

Analysis:

The maximum penalty for the offense charges is 50 penalty units. The value of one penalty unit is prescribed in  s 17 of the  Crimes (Sentencing Procedure) Act 1999. The relevant value of one penalty unit is equal to $110.  It follows that the maximum penalty was $5,500.

The fine imposed by her Honour represented 27% of the maximum. It reflected her Honour’s assessment of the objective seriousness of the offence as being serious but not of the highest seriousness. The court is not persuaded that the sentence imposed on each of the plaintiffs was either unreasonable or unjust. It was open to her Honour in the exercise of her discretion to impose a fine on each of the plaintiffs in the sum of $1,500, having regard to all objective and subjective considerations, including that each of the plaintiffs was regarded as a person of good character.

In the present case, the only basis for the allegation of disparity was the financial circumstances of each offender.  As referred to above, it was accepted the involvement of each was the same.  It is important to recall that none of the plaintiffs adduced evidence as to his or her financial means.  There was no evidence of the particular means of any given plaintiff  beyond unquantified descriptions given by Mr Singleton from the bar table. Thus, her Honour was not in a position to determine what, if any, hardship would be suffered by any plaintiff  by a fine of the order imposed.

What her Honour had been told was that the plaintiffs had different financial means but were each of good character and were equally involved. Her Honour was entitled to consider, in the absence of evidence to the contrary, that a fine of $1,500 was appropriate, even for those of limited financial means. By effectively discounting the fine below what her Honour considered appropriate, her Honour appears to have given greater weight to imposing the same penalty for the same conduct than to the capacity of each to pay. This was a choice which was open to her Honour in the exercise of the sentencing discretion and does not result in any disparity in the sentences imposed.

Conclusion: The court have considered each of the grounds in as much depth as it would have done had leave been granted. The prosecutor does not oppose leave. In these circumstances, the court is persuaded that leave ought be granted although it is not persuaded that there was any arguable error in the sentence imposed by the Court below.

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