JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COCKBURN CEMENT LTD -v- COWIE [2023] WASC 343
CORAM: DERRICK J
HEARD: 14 AUGUST 2023
DELIVERED : 8 SEPTEMBER 2023
FILE NO/S: SJA 1024 of 2023
BETWEEN: COCKBURN CEMENT LTD
Appellant
AND
STUART DAVID COWIE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE H WATSON
File Number : FR 7345/2020, FR 7350/2020, FR 7354/2020 - 7356/2020 & FR 7358/2020
Catchwords:
Appeals - Application for leave to appeal against conviction - Appellant convicted of six offences of emitting an unreasonable emission, namely an odour, contrary to s 49(5)(a) of the Environmental Protection Act 1986 (WA) - Whether magistrate made error of fact as to the time for which a person was exposed to an unreasonable emission - Whether error of fact was material - Whether magistrate made error of law in finding emissions were unreasonable emissions - Whether 'correctness standard' or 'deferential standard' of appellate review to be applied - Principles to be applied in determining if emission is an unreasonable emission - Whether magistrate in deciding whether emissions were unreasonable emissions impermissibly adopted a subjective approach - Whether magistrate made error of law in failing to find that a defence under s 74A(b)(iv) of the Environmental Protection Act 1986 (WA) had been established because emissions were in accordance with the conditions of a license issued to the appellant under s 57(3) of the Act - Principles of construction to be applied in construing conditions of licenses issued under the Environmental Protection Act 1986 (WA)
Appeals - Application for leave to appeal against sentence - Appellant sentenced for six offences against s 49(5)(a) of the Environmental Protection Act 1986 (WA) to a single fine of $290,000 pursuant to s 54 of the Sentencing Act 1995 (WA) - Whether magistrate made error of law by failing to take into account a factor that was material to the determination of the sentence imposed - Whether magistrate made error of law by imposing a single fine for the offences pursuant to s 54 of the Sentencing Act without first fixing and articulating individual fines for each offence and then applying the totality principle to arrive at an appropriate total fine - Whether fine imposed was manifestly excessive
Appeals - Whether appellant should be permitted to raise new argument on appeal - Principles to be applied in determining if appellant should be permitted to raise new argument on appeal
Legislation:
Crimes Act 1914 (Cth)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Environmental Protection Act 1986 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA)
Penalties and Sentences Act 1992 (Qld)
Planning and Development Act 2005 (WA)
Sentencing Act 1991 (Vic)
Sentencing Act 1995 (NT)
Sentencing Act 1995 (WA)
Result:
Appeal against conviction dismissed
Appeal against sentence allowed
Fine of $245,000 substituted for fine of $290,000 imposed by magistrate
Category: A
Representation:
Counsel:
| Appellant | : | E C Muston SC & T Pontre |
| Respondent | : | A J Sefton SC &… |
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- Case
- [2023] WASC 343
- Decision Date
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