Citation: Xia Zhang v Office of Licensing, Gaming, Racing [2015] NSWDC 280
Court: District Court of New South Wales
Date: 9 November 2015
Judge: Judge AC Scotting
Background
The appellant was the licensee of a packaged liquor store operating within the Harbourside Shopping Centre at Darling Harbour. Compliance officers attended the store on the evening of 6 February 2015 and observed it trading past 10pm, the cut-off time introduced by legislative amendments in February 2014. CCTV footage and till records subsequently revealed that the store had also traded beyond 10pm on four earlier dates in January and early February 2015.
The appellant was charged with five counts of supplying liquor outside the standard trading period under section 9(1)(b) of the Liquor Act 2007, and one count of failing to comply with a notice to produce documents under section 34 of the Gaming and Liquor Administration Act 2007. She pleaded guilty in the Local Court, where Magistrate Haskett fined her a total of $18,000 across the six charges and ordered her to pay prosecution costs of $7,870.70, bringing the total to $25,870.70.
The appellant appealed to the District Court against the severity of that sentence. The appeal proceeded as a rehearing, with both the appellant and her daughter giving oral evidence.
Legal Issues
- Whether the total fines imposed by the Local Court were excessive, having regard to the principles of totality and the appellant's capacity to pay
- Whether the prosecution costs order of $7,870.70 was just and reasonable
- How general and specific deterrence, remorse, cultural background, and mitigating factors should bear on sentence
- Whether any weight should be given to extra-curial punishment already suffered, including the three-day seizure of the till system and the incurring of a licence strike under the Liquor Act's three-strikes scheme
- Whether the section 34 charge (failure to comply with a notice to produce) warranted punishment at all
Decision
Judge Scotting conducted a full sentencing rehearing and reduced the penalties substantially. The court accepted that the appellant kept the store open past 10pm primarily to serve shopping centre workers who finished shifts at 10pm, and that she had developed friendships with those customers. The appellant's limited English, her genuine remorse, her difficult financial circumstances (the business had earned only around $2,000 profit in 2015 due to nearby construction disruption), and her husband's injection of $170,000 to keep the store viable were all treated as relevant mitigating factors.
On the five section 9 trading offences, the court determined that a total financial penalty of $4,000 was appropriate when totality, objective seriousness, deterrence, and capacity to pay were weighed together. The appellant was convicted on the first offence (24 January 2015) and received no further penalty beyond that conviction under section 10A of the Crimes (Sentencing Procedure) Act 1999. The remaining four section 9 offences were dismissed under section 10(1)(a) on the basis that they formed a continuing course of conduct and that, together with the costs order, it was inexpedient to inflict further punishment.
On the section 34 offence for failing to produce documents, the court found the charge trivial in the circumstances, noting the appellant's poor English comprehension and the context of the inspection. The charge was dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999 without conviction.
On the prosecution costs order, the District Court found that approximately $3,000 charged for drafting the court attendance notices was not justifiable. Taking a fresh view of the accounts, the court reduced the costs order from $7,870.70 to $4,000. The court also noted that the seizure of the till system for three days and the incurring of a licence strike (which runs for three years) constituted extra-curial punishment that was relevant to the overall sentencing calculus.
Orders Made
- The appellant is to pay prosecution costs in the sum of $4,000.
- The section 34 charge (failure to comply with a notice to produce) is dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999 without conviction.
- In relation to the section 9 offences: the appellant is convicted on the offence of 24 January 2015 with no further penalty imposed (section 10A, Crimes (Sentencing Procedure) Act 1999); the remaining four section 9 offences are dismissed under section 10(1)(a) of the same Act.
Key Takeaways
- The District Court significantly reduced both fines and costs on a severity appeal where the original Local Court sentence had not adequately accounted for totality, capacity to pay, and the extra-curial consequences already suffered by the appellant.
- A licence strike under the Liquor Act's three-strikes scheme, and the seizure of business equipment by investigators, can constitute extra-curial punishment relevant to the sentencing exercise, potentially reducing the quantum of additional financial penalty appropriate to impose.
- Where a licensee faces multiple charges arising from a continuing course of substantially similar conduct, the totality principle may warrant dealing with all offences together rather than accumulating separate penalties for each.
- Poor English comprehension, while not a defence, was treated as a relevant circumstance in assessing the section 34 charge and contributed to the court's decision to dismiss that charge without conviction as trivial in the circumstances.
- Prosecution costs orders are subject to review on a sentence appeal, and components that cannot be justified on a careful examination of the accounts will be reduced to a just and reasonable figure.
Legislation and Cases Referenced
Legislation:
- Liquor Act 2007 (NSW), ss 3(1)(a), 3(2), 9(1)(b), 144B, 147
- Gaming and Liquor Administration Act 2007 (NSW), ss 21, 34
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17, 22
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10(1)(a), 10A, 21A
- Fines Act 1996 (NSW), s 6
Cases:
- Janindeh v R [2014] NSWCCA 178