Cockburn Cement Ltd v Cowie
[2023] WASC 343
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 & J Perera |
Solicitors:
| Appellant | : | Squire Patton Boggs |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366
Barrett-Lennard v River Wind Pty Ltd [2019] WASCA 199
Baulkham Hills Shire Council v AV Walsh Pty Ltd [1968] 3 NSWLR 138; (1968) 15 LGRA 338
Bevan v The State of Western Australia [2012] WASCA 153
Billabong Gold Pty Ltd v Vango Mining Ltd [No 2] [2023] WASCA 58
Bransby v City of Wanneroo [No 2] [2020] WASC 396
Brisville Pty Ltd v Brisbane City Council [2007] QPEC 63
Brockway v Kirk [2019] WASC 8
Calandra v Civil Aviation Safety Authority [2015] WASCA 31
Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683
Campbelltown Golf Club v Winton [1998] NSWCA 51
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 476
Castle and City of Rockingham [2018] WASAT 98
Chief Executive Officer of Customs v Hui Min Jing [2007] NSWSC 1354
Cohen v City of Perth [2000] WASC 306
Coulton v Holcombe (1986) 162 CLR 1
Crowther v State of Queensland [2002] QPEC 79
Environmental Protection Authority v Barnes [2006] NSWCCA 246
Fix WA Pty Ltd v City of Armadale [2019] WASC 356 (S)
Fletcher v May [2001] QDC 81
Goodchild v Director of Public Prosecutions for Western Australia [2023] WASC 60
Grant v Cornford [2010] NTSC 59
Gration v C Gillan Investments Pty Ltd [2005] QCA 184; [2005] 2 Qd R 267
Gray v Macquarie Generation [2010] NSWLEC 34; (2010) 3 ARLR 454
GSO v The State of Western Australia [2021] WASCA 58
Hayter v Thomson [2020] WASC 194
Inglis v Pinch [2016] WASC 30
Jackman v Director of Public Prosecutions [2023] WASC 63
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Langmaid v Dobsons Vegetable Machinery Pty Ltd [2014] TASFC 6
Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1
McLennan v McCallum [2010] WASCA 45
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713
Page v The State of Western Australia [2018] WASCA 76
Paolucci v Town of Cambridge [2013] WASC 50
Parker v City of Rockingham [2021] WASCA 120; [2021] 248 LGERA 82
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Potts v South Metropolitan Regional Council (Magistrates Court of Western Australia, AR 2728/2014, 20 April 2016)
Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 38
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Roffey v The State of Western Australia [2007] WASCA 246
Salkilld v The State of Western Australia [2017] WASCA 168
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sedgman v Kenly (WA) Pty Ltd [2021] WASC 107 (S)
Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287
The State of Western Australia v Jacoby [2020] WASCA 150
The State of Western Australia v Tumata [2022] WASCA 161
The State of Western Australia v Wark [2020] WASCA 19
The State of Western Australia v Williams [2022] WASCA 105
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Transpacific Industries Group v Ipswich City Council [2012] QPEC 69
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481
Uren v Bald Hills Wind Farm [2022] VSC 145
Vargess v Hughes [2017] WASC 291
Varrichio v Wentzel [2016] SASC 86
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Watson v The State of Western Australia [2022] WASCA 80
Whisprun v Dixon [2023] HCA 48; (2003) 77 ALJR 1598
Whitby v The State of Western Australia [2019] WASCA 11
WS v Gardin [2015] WASC 97
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
DERRICK J:
Introduction
On 29 July 2020 the appellant was charged with 15 offences of emitting an unreasonable emission, namely an odour, from premises the subject of Licence Number L4533/1967/15 contrary to s 49(5)(a) of the Environmental Protection Act 1986 (WA) (Act).[1] The appellant pleaded not guilty to the charges.
[1] FR 7345/2020 - 7359/2020. The charges as pleaded alleged that the appellant 'emitted or caused to be emitted' an unreasonable emission from premises. However, the offence created by s 49(5)(a) of the Act, which is the section that was specified in the prosecution notices as the section against which the offences were committed, is only committed when a person 'emits an unreasonable emission' from premises. A person who 'causes an unreasonable emission to be emitted' from premises commits an offence against s 49(5)(b). Nothing turns on the point because it is common ground that the magistrate convicted the appellant of the offences referred to in par 4 below on the basis that it emitted an unreasonable emission from premises contrary to s 49(5)(a).
On 5 July 2022 two of the charges were dismissed for want of prosecution pursuant to s 25(3) of the Criminal Procedure Act 2004 (WA) (CPA).[2]
[2] FR 7353/2020 and FR 7359/2020.
During the period 25 July 2022 - 12 August 2022 the appellant's trial on the remaining 13 charges took place before Magistrate Watson. At the conclusion of the trial the magistrate reserved her decision.
On 1 December 2022 the magistrate delivered her decision. Her Honour found the appellant not guilty of seven of the charges[3] and guilty of six of the charges.[4] Her Honour entered judgments of acquittal and conviction accordingly. Her Honour delivered lengthy oral reasons for her decision (conviction reasons).[5]
[3] FR 7346/2020 - 7349/2020, FR 7351/2020 - 7352/2020 and FR 7357/2020.
[4] FR 7345/2020, FR 7350/2020, FR 7354/2020 - 7356/2020 and FR 7358/2020.
[5] Further to footnote 1 above, in convicting the appellant of each of the six charges the magistrate found that the appellant 'emitted' an odour that was an unreasonable emission: conviction reasons, ts 63.
On 9 March 2023 the magistrate sentenced the appellant to a single fine of $290,000 for the six offences (offences). Her Honour delivered oral reasons for her sentencing decision (sentence reasons).
By an appeal notice filed on 5 April 2023 the appellant applies for leave to appeal against each of the convictions and against the sentence imposed on a number of grounds.[6]
[6] The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). The decision of the magistrate to convict the appellant of the offences is a decision that may be appealed by the appellant: CAA s 6(c) and s 7(1). The decision of the magistrate to sentence the appellant to a fine of $290,000 is also a decision that may be appealed by the appellant: CAA, s 6(f) and s 7(1).
On 17 April 2023 a registrar of this court made an order that the applications for leave to appeal against conviction and sentence be heard together with the appeals.
On 14 August 2023 I heard the applications for leave to appeal and the appeals.
Leave to appeal - applicable principles
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[7] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[8] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[9]
[7] CAA, s 9(2).
[8] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[9] CAA, s 9(3).
Section 49(5)(a) and relevant definitions
Section 49(5) of the Act provides:
A person who -
(a)emits an unreasonable emission from any premises;
(b)…,
commits an offence.
Section 49(1) relevantly provides:
In this section -
unreasonable emission means an emission … which unreasonably interferes with the health, welfare, convenience, comfort or amenity of any person.
Section 3 of the Act relevantly defines 'emission' to mean an 'emission of…odour'.
Prosecution case at trial - brief overview
The prosecution case at trial, stated in very brief terms, was as follows.[10]
[10] Conviction reasons, ts 5 - 6.
The appellant manufactures quicklime and lime at its manufacturing plant in Munster (premises). During the manufacturing process gasses are emitted through kiln stacks known as kiln 5 and kiln 6. The kilns are approximately 100 m tall and are visible from many points in the surrounding areas.
The appellant uses shell sand from the nearby ocean in its lime production process. Due to the natural organic nature of shell sand the manufacturing process results in the production of organic material and consequently the emission of a distinct odour. The odour can be described as acrid and/or sulphurous.
On various dates numerous residents living in or close to the suburb of Beeliar detected the odour emitted from the premises. The emitted odour interfered with the convenience, comfort or amenity of the residents.[11]
[11] In closing submissions the prosecution conceded that the evidence before the magistrate was incapable of proving beyond reasonable doubt that any health impacts reported by witnesses were attributable to their inhalation of odorous gasses as opposed to their inhalation of lime kiln dust from the appellant's operations. Therefore, the prosecution also necessarily conceded that the evidence was incapable of proving that the emissions the subject of the charges were unreasonable emissions because they unreasonably interfered with the health or welfare of the witnesses: ts 1062 - 1063, 12 August 2022.
Facts of the offences as found by the magistrate
In convicting the appellant of the offences the magistrate found that the appellant, on six separate occasions during the period 22 January 2019 ‑ 19 April 2019, emitted odours from the premises that were unreasonable emissions. Her Honour found that the emitted odours were unreasonable emissions because they interfered with the convenience, comfort and/or amenity of 10 residents living in Beeliar and one resident living in Yangebup.
In convicting the appellant of four of the six offences the magistrate, consistently with the way that the prosecution presented its case at trial, relied on the evidence of more than one resident. That is, the magistrate found that the odour emitted from the premises that was the subject of the charge interfered with the convenience, comfort and/or amenity of more than one resident.[12]
[12] In closing submissions the appellant's counsel informed the magistrate that the appellant could have taken 'a duplicity point' but had not done so because to take the point could have resulted in it being faced with further charges. Counsel informed the magistrate that the appellant did not take the duplicity point: ts 1083, 12 August 2022.
The magistrate's findings of fact that formed the basis of each conviction were as follows.[13]
Charge FR 7345/2021 - 22 January 2019 (charge 1)[14]
[13] In the conviction reasons the magistrate referred to the 13 charges as charges 1 - 13: conviction reasons ts 2 ‑ 3. Her Honour numbered the charges in the order of the dates on which the offences the subject of the charges were alleged to have been committed (not in the order of the charge numbers). Hence the charges alleging the offences, that is, charges FR 7345/2020, FR 7350/2020, FR 7354/2020 - 7356/2020 and FR 7358/2020 were referred to by her Honour as charges 1, 12, 3, 4, 5 and 7 respectively. Consistently with the approach adopted by the parties on the appeal I will in these reasons adopt her Honour's numbering of the charges alleging the offences.
[14] Conviction reasons, ts 48.
On 22 January 2019 the appellant emitted an odour from the premises that was detected by a resident of Beeliar, Ms Evonne Jones, at two discrete points in time. The first detection was between 5.30 pm and 6 pm and the second detection was some time before 8 pm.
On the first occasion that Ms Jones detected the odour she was outside with her children after dinner watching her son learning to ride his bike. The odour was strong, overwhelming and ongoing. As a result of the overwhelming odour Ms Jones moved her children inside her house and shut the doors and windows of her house. Ms Jones did this to remove herself and her children from the odour. The odour caused Ms Jones to cease the enjoyable activity of watching her son ride his bike.
On the second occasion that Ms Jones detected the odour it ceased when she went inside.
The odour unreasonably interfered with Ms Jones' 'convenience, comfort and amenity'.
Charge FR 7354/2020 - 25 and 26 February 2019 (charge 3)
On 25 and 26 February 2019 the appellant emitted an odour from the premises that was detected by three residents, Ms Jacinta Fitzgerald, Mr Frank Van Wees and Ms Lauren Bursnall. Ms Fitzgerald and Ms Bursnall are residents of Beeliar. Mr Van Wees is a resident of Yangebup.
Jacinta Fitzgerald[15]
[15] Conviction reasons, ts 49 - 50.
Ms Fitzgerald detected the odour at about 4 pm on 25 February 2019 while she was in her garden. She detected the odour for no more than, and possibly less than, five minutes. The odour was continuous and strong. The odour was unpleasant. The odour was more than 'just not nice to inhale'. The odour did not feel natural, felt like something she should not be breathing in and made her feel like she could not breathe normal fresh air.
As a result of the odour Ms Fitzgerald decided to take her washing inside because she was concerned that her clothes on the line would absorb the smell. She remained exposed to the odour and had to put up with the odour while doing so.
The odour unreasonably interfered with Ms Fitzgerald's 'comfort and amenity'.
Frank Van Wees[16]
[16] Conviction reasons, ts 50 - 51.
Mr Van Wees detected the odour on 26 February 2019 at around 11 am when he was outside on his patio with guests preparing for a barbeque. The odour was 'absolutely horrendous…very unpleasant…with an intensity of eight or nine out of 10'. He estimated that he smelt the odour for two and a half to three hours.
After 10 minutes Mr Van Wees and his guests went inside. However, he could still smell the odour because it had entered the house through the air-conditioning. As a result he had to turn the air conditioning off. After a while he and his guests could not smell the odour.
Mr Van Wees did not proceed with his plans for an outside barbeque.
When Mr Van Wees' guests left at 3 pm he was unable to smell the odour.
The odour unreasonably interfered with Mr Van Wees' 'comfort, convenience and amenity'.
Lauren Bursnall[17]
[17] Conviction reasons: ts 51 - 52.
Ms Bursnall detected the odour on 26 February 2019. She first smelt the odour at 2 pm and last noticed it at 3.30 pm while she was moving boxes in and out because she had just moved house. The odour was present for 25% to 75% of the time that she was outside. The odour was very strong and unpleasant. It was overpowering and repetitive.
At 3.30 pm Ms Bursnall went inside her house and shut her house and the doors. Ms Bursnall moved inside her house partly as a result of what she perceived to be health risks associated with the odour but also to escape the overpowering and unpleasant odour.
Ms Bursnall was inconvenienced because as a result of going inside her house she was unable to continue moving boxes.
Ms Bursnall had previously lived in Yangebup and was aware, prior to moving to Beeliar, that she may smell an odour.
The odour unreasonably interfered with Ms Bursnall's 'comfort convenience and amenity'.
Charge FR 7355/2020 - 12 March 2019 (charge 4)
On 12 March 2019 the appellant emitted an odour from the premises that was detected by two residents of Beeliar, Mr Daniel Cain and Ms Patricia Joss.
Daniel Cain[18]
[18] Conviction reasons, ts 52 - 53.
Mr Cain detected the odour at about 2 pm while he was hanging out his washing. He smelt the odour on and off for about 10 minutes. The odour was intermittent and wispy. He smelt the odour about twice a minute when there was a gust of breeze. The smell was eight out of ten in terms of unpleasantness. The odour was analogous to an intermittent smell of pet faeces over a neighbour's fence. The odour was 'a lighter smell because it wasn't as overpowering or intense, so it was a lot lighter smell'. However, it was 'still unpleasant'.
Mr Cain's plan for the afternoon was to sit in his garden, have a coffee and read a book. However, he decided that due to the odour he did not want to read his book in his garden as he had planned. He went inside his house instead.
The odour unreasonably interfered with Mr Cain's 'convenience and amenity'.
Patricia Joss[19]
[19] Conviction reasons, ts 53 - 54.
Ms Joss first smelt a strong odour at 4.45 pm and last noticed the odour at 5.05 pm in her backyard when playing with her dog.[20] The odour was very strong and persistent and did not lessen over the time she was outside. The odour was quite offensive and uncomfortable. The odour was too strong for her to be able to remain in her backyard.
[20] The finding as to the time for which the odour persisted as stated is the finding that was ultimately made by the magistrate in the sentence reasons: sentence reasons, ts 5 - 6. In the conviction reasons the magistrate stated that Ms Joss detected the odour from 4:05 pm to 5:05 pm. This discrepancy is the subject of ground 5 of the application for leave to appeal.
Ms Joss' dog needed exercise. She could not exercise her dog in her backyard due to the odour. She therefore had to take her dog to the beach for exercise.
Ms Joss lives about 500 m from the premises and can see most of the structure of the premises from her house. She hears noise from the train going past, traffic at the site and production noises. She cannot reasonably expect the same amenity as a person who lives far from the premises.[21]
[21] The magistrate stated in this context that it 'may well be that if [Ms Joss] detected an occasional whiff or a faint odour, that would not be an unreasonable interference' but that it is 'a balancing exercise looking at all of the competing factors': conviction reasons, ts 54.
Ms Joss was aware of reports regarding odour prior to moving to Beeliar because she had read about them in the newspaper. She was not, however, aware from the reports of the intensity of the odour.
The odour unreasonably interfered with Ms Joss' 'comfort, convenience and amenity'.
Charge FR 7356/2020 - 16 March 2019 (charge 5)[22]
[22] Conviction reasons, ts 55 - 56.
On 16 March 2019 the appellant emitted an odour from the premises that was detected by one resident of Beeliar, Mr Wayne May, for approximately one and a half hours.
Mr May was planning to have breakfast on his patio with his parents who were visiting from the United Kingdom when he experienced an unpleasant odour between 9.30 am and 11 am. The odour was 'very strong and consistent'. The odour made it too unpleasant for him and his parents to sit outside so they abandoned their breakfast plans and went inside.
Mr May went outside a couple of times to check if the odour was gone but it was still there. After waiting 90 minutes for the odour to disappear he gave up and took his parents to a café for brunch.
The odour was strong, continuous and so unpleasant that Mr May had to abandon the planned outdoor breakfast with his parents.
Mr May can see the towers at the premises from his residence and was aware that he is close to an industrial area.
The odour unreasonably interfered with Mr May's 'convenience and amenity'.
Charge FR 7358/2020 - 22 March 2019 (charge 7)
On 22 March 2019 the appellant emitted an odour from the premises that was detected by three residents of Beeliar, Mr Andrew McFadyen, Mr Wayne May and Ms Anne Velasquez.
Andrew McFadyen[23]
[23] Conviction reasons, ts 55 and 58.
Mr McFadyen detected an odour at 12.42 pm when he returned home for lunch. He then again detected the odour for a two hour period between 5.27 pm and 7.26 pm when he returned home from work.
Mr McFadyen could not recall the intensity of the odour on the first of the occasions that he detected it. He did not recall changing his behaviour on this occasion due to the odour.
When Mr McFadyen detected the odour on the second occasion it was strong, sulphurous and pungent. It was such as to make him want to stop breathing. It caused him to postpone mowing his lawn and to move his family inside the house. On the next day he had to choose between mowing the lawn and attending his children's sport.
Mr McFadyen's residence is situated in close proximity to the premises. His residence is in the buffer zone. He can see the towers at the premises from his residence. He sometimes hears noise from the premises.
Mr McFadyen cannot expect the same amenity as a person who lives far away from the premises.[24]
[24] The magistrate stated in this context that given that Mr McFadyen lived in the buffer zone it 'may well be reasonable for a strong odour to pass by him briefly or for a faint odour to be detected over a time period' and that it was a 'matter of balancing and weighing up all of the factors': conviction reasons, ts 58.
The odour unreasonably interfered with Mr McFadyen's 'convenience and amenity'.
Wayne May[25]
[25] Conviction reasons, ts 58.
From 3.30 pm to 3.45 pm, Mr May smelt an odour while outside on his patio. The odour was strong and unpleasant although not intolerable. It was not pleasant to sit outside. He then went inside and the odour disappeared for, at most, about an hour.
At one stage Mr May thought that the odour had gone but he then detected the odour again on four or five occasions between 4.45 pm and 11 pm or 11.30 pm when he checked outside to see if it was still present. The odour was very strong. The odour caused him to change his plans to have dinner outside. He could not smell the odour while inside. The odour completely ruined his evening.
Mr May can see the towers at the premises from his house. He is aware that he lives near an industrial area.
The odour unreasonably interfered with Mr May's 'convenience and amenity'.
Anne Velasquez[26]
[26] Conviction reasons, ts 59.
Ms Velasquez smelt a very strong odour on two occasions. First, at 5.30 pm or 6 pm when she arrived home from work. Second, at around 10 pm.
When Ms Velasquez returned home from work at about 5.30 pm or 6 pm she opened her front door and her bedroom window to let fresh air into her house. As soon as she did so she smelt an odour and immediately closed her house up. The odour was very harsh, very pungent, very strong and acrid. It 'sort of smacked [her] in the face'. If the odour had not been present she would have left her front door and window open to let fresh air into her house.
At about 10 pm Ms Velasquez, after her house had been closed all evening and when she intended to open her bedroom window before going to sleep, detected that the odour was still present.
The odour unreasonably interfered with Ms Velasquez's 'amenity and convenience'.
Charge FR 7350/2020 - 19 April 2019 (charge 12)
On 19 April 2019 the appellant emitted an odour from the premises that was detected by two residents of Beeliar, Ms Mirelle Anthony and Mr Joel Dimasi, for 6 hours and 6 hours and 15 minutes respectively.
Joel Dimasi[27]
[27] Conviction reasons, ts 60 - 61.
Mr Dimasi detected a consistent and unpleasant odour on an approximate hourly basis between 1.15 pm and 7.30 pm.
At about 1.15 pm Mr Dimasi lifted his garage door because he wanted to work in his garage. Upon opening the garage door he detected the odour. The odour was quite strong and was consistent. It was like being hit in the face. He spent some time in the garage but decided that 'enough was enough', closed the garage door and went inside. Closing the garage door did not do much to block the odour so he went back inside his house to 'shelter' from the odour.
Mr Dimasi checked outside for the odour on average each hour until approximately 7.30 pm. He did this because he wanted to work in his garage. On each occasion that he checked he smelt the odour. The last time he noticed the odour was at about 7.30 pm. The odour stopped him from working in his garage.
The odour was an unreasonable interference with Mr Dimasi's 'convenience and amenity'.
Mirelle Anthony[28]
[28] Conviction reasons, ts 61.
Ms Anthony detected an odour between 12 pm and 6 pm while in her outside entertaining area for her husband's birthday party. The odour was very strong and unpleasant and powerful enough to make it unpleasant to sit outside with her friends.
Eventually, at about 6 pm, Ms Anthony had to move the party inside because the strength of the odour made it unpleasant to sit outside with her friends and she was embarrassed.
Ms Anthony's property is about 500 m from the premises. Before she moved to her property she was aware that some people had commented on the odour, although she had concluded that it was not an issue.
The odour unreasonably interfered with Ms Anthony's 'convenience, comfort and amenity'.[29]
[29] In making this finding and in considering the impact of the odour on Ms Anthony's amenity, the magistrate expressly took into account that before moving to the property Ms Anthony had decided that odour would not be an issue: conviction reasons, ts 61.
Grounds of appeal - approach
The appeal notice contains eight grounds of appeal. However, at the appeal hearing the appellant abandoned ground 1.[30]
[30] Appeal, ts 4.
Grounds 2 - 5 challenge the appellant's convictions. Ground 2 - 4 challenge the convictions for all the offences. Ground 5 challenges only the conviction for the offence the subject of charge 4.
None of grounds 2 - 5 challenge the magistrate's findings that on the occasions the subject of the charges the appellant emitted an emission, an odour, from the premises.
Grounds 6 - 8 challenge the sentence imposed.
In its submissions the appellant dealt first with ground 5 before turning to grounds 2, 3 and 4. Given the substance of the allegation the subject of ground 5 this was a sensible approach and one that I will adopt subject to one qualification, specifically that I will deal with ground 4 before ground 3. In my view it is logical and more convenient to deal with ground 4 before ground 3.
Ground 5
Alleged error
In the conviction reasons the magistrate made the following finding of fact relevant to charge 4:[31]
Ms Joss also detected the odour that day [12 March 2019] at 4.05 and last noticed it at 5.05.
[31] Conviction reasons ts 53.
By ground 5 the appellant alleges that in making this finding of fact the magistrate made an error.[32] The appellant alleges that the magistrate should have found that Ms Joss detected the odour between 4.45 pm and 5.05 pm on 12 March 2019.
Ms Joss' evidence
[32] The appellant is able to appeal against its conviction for the offence on the ground that the magistrate made an error of fact: CAA, s 8(1)(a)(i).
In her evidence Ms Joss testified that she recalled an occasion between 22 January 2019 and 29 April 2019 on which she arrived home after work and smelt an odour.[33] She testified that she went outside to play with her dog but the odour was really strong so she went inside to escape.[34] She testified that she and her husband took their dog to the beach to escape the odour.[35] She testified that this would have been between 4.30 pm and 5 pm approximately.[36]
[33] ts 413 - 414, 1 August 2022.
[34] ts 414, 1 August 2022.
[35] ts 414, 1 August 2022.
[36] ts 414, 1 August 2022.
A little later in her evidence Ms Joss was shown a report that she had made to the Department of Water and Environmental Regulation as part of the Community Odour and Dust Monitoring Programme.[37] Ms Joss confirmed that the report related to the incident when she had smelt the odour and taken her dog to the beach because the odour was too strong.[38] Ms Joss also confirmed that when she made the report the incident was still fresh in her mind.[39] Ms Joss was asked whether looking at the report helped her remember the date and time of the incident. She confirmed that it did.[40] Ms Joss was then asked, in substance, what was the time and date of the incident as recorded in the report? Ms Joss responded, '12 March, and it is 4.45 til 5.05'.[41] Immediately upon Ms Joss giving this answer the Magistrate asked, '4.05 until 5.05?' to which Ms Joss responded 'Yes'.[42]
Parties' submissions - summary
[37] ts 416, 1 August 2022.
[38] ts 416, 1 August 2022.
[39] ts 416, 1 August 2022.
[40] ts 416, 1 August 2022.
[41] ts 416, 1 August 2022.
[42] ts 416, 1 August 2022.
The appellant concedes that Ms Joss gave two inconsistent answers in relation to the time period during which she smelt the odour, one answer being that she smelt the odour between 4.45 pm and 5.05 pm and the second being that she smelt the odour between 4.05 pm and 5.05 pm.[43] However, the appellant submits that Ms Joss' evidence, read in context, should be understood as being that she smelt the odour between 4.45 pm and 5.05 pm. The appellant submits that this is so for the following reasons:[44]
1.Ms Joss expressly stated that the time frame was between 4.45 pm and 5.05 pm after refreshing her memory from the report that she made to the Department at the time that the incident was still fresh in her mind; and
2.The time frame of 4.45 pm to 5.05 pm was broadly consistent with Ms Joss' other evidence to the effect that she went to the beach between approximately 4.30 pm and 5 pm to escape the odour.
[43] Appellant's Outline of Submissions dated 26 May 2023 (Appellant's Submissions), par 15.
[44] Appellant's Submissions, par 16.
The appellant submits that read in context Ms Joss' answer 'Yes' to the magistrate's question can be readily understood as a mistake or a simple communication error.
The appellant submits that an additional reason for concluding that Ms Joss' evidence should be understood as being that she smelt the odour between 4.45 pm and 5.05 pm is that the magistrate herself accepted this to be the case in the sentence reasons.[45] In this context the appellant points out that during the sentencing proceedings the asserted discrepancy between Ms Joss' evidence and the magistrate's finding in the conviction reasons was brought to her Honour's attention. The appellant points out that it was submitted on its behalf, in substance, that for the purposes of the sentencing exercise the 'slip' could be corrected by her Honour and that the appellant could be sentenced on the basis that Ms Joss detected the odour during the period 4.45 pm and 5.05 pm.[46] The appellant further points out that in sentencing it for the offences the magistrate said the following:[47]
… The second resident was Patricia Joss. She was outside playing with her dog and the odour was so strong she went back inside. I wish to clarify that the defence is correct. The amount of times [sic] she detected that smell was 4.45 until 5.05. I think I said in my reserved decision to that [sic] it was 4.05 to 5.05. I accept that it was a 20 minute period and not a one hour period.
[45] Appellant's Submissions, par 17 - 19.
[46] Appellant's written undated 'Submissions on Sentence' filed on or before 2 March 2023 (Defence Sentencing Submissions), par 38.
[47] Sentence reasons, ts 5.
The appellant submits that the magistrate's error of fact was material to her Honour's decision to convict the appellant of the charge because it was clearly reasonably possible that the magistrate might not have arrived at the ultimate finding of guilt if the error had not been made.[48] In support of this submission the appellant points out that in finding the odour to be unreasonable her Honour made the following express reference to the time period over which the odour was detected:[49]
It may well be that if [Ms Joss] detected an occasional whiff or a faint odour, that would not be an unreasonable interference. However, it is a balancing exercise looking at all of the competing factors, and I am satisfied beyond reasonable doubt the strong continuous smell over the period of approximately one hour unreasonably interfered with her comfort, convenience and amenity.
[48] Appellant's Submissions, par 20.
[49] Conviction reasons, ts 54.
The appellant submits that it is clear from this express reference to the time period over which the odour was detected that the duration of the odour was a material consideration in the magistrate's reasoning; was a material consideration in the multi-factorial analysis that the magistrate was required to engage in.[50] The appellant further submits in this context that the time difference the subject of the alleged error of fact was significant, some 40 minutes.[51]
[50] Appeal, ts 10 - 11.
[51] Appeal, ts 11.
The respondent accepts that the magistrate made the alleged error of fact essentially for the reasons advanced by the appellant. However, the respondent disputes that the magistrate's error was material to her Honour's decision to convict the appellant of the charge. The respondent submits that given all the findings made by the magistrate in relation to the charge on the basis of Ms Joss' evidence as well as the findings made by her Honour in relation to the other charges, there is no reasonable possibility that her Honour would not have convicted the appellant if she had not made the factual error.[52] The respondent further submits that a second reason for concluding that there is no reasonable possibility that the magistrate would not have convicted the appellant if she had not made the factual error is that her Honour's decision was also based on her finding that the emission unreasonably interfered with the convenience and amenity of Mr Cain.[53]
Analysis and decision
[52] Respondent's Outline of Submissions dated 19 June 2023 (Respondent's Submissions), par 18 - 23; Appeal, ts 57 - 59.
[53] Respondent's Submissions, par 24; Appeal, ts 59 - 60.
In my opinion it is clear that Ms Joss' evidence should be read and understood as being that she detected the odour between 4.45 pm and 5.05 pm. This was the evidence she gave by reference to the report that she made of the incident which she confirmed was made by her when the incident was still fresh in her mind. Further, it is this evidence that is more consistent with her other evidence that she and her husband took their dog to the beach to escape the odour between approximately 4.30 pm and 5.00 pm. Ms Joss' immediately subsequent affirmatory response to the magistrate's misstatement of the evidence that she had just given, which misstatement was presumably due to her Honour having failed to correctly hear what Ms Joss had said, was clearly given in error; that is, was the result of Ms Joss not picking up that the magistrate had said '4.05 pm' rather than '4.45 pm'. The fact that the magistrate in the sentence reasons accepted that Ms Joss' evidence was that she had smelt the odour between 4.45 pm and 5.05 pm simply provides further support for the conclusion that this is indeed how Ms Joss' evidence should be read and understood.
Accepting that Ms Joss' evidence was that she smelt the odour between 4.45 pm and 5.05 pm, it necessarily follows that the magistrate, in convicting the appellant of the charge on the basis that Ms Joss smelt the odour between 4.05 pm and 5.05 pm, made an error of fact. The alleged error of fact has therefore been established.
The remaining question is whether the magistrate's error of fact was material to her Honour's decision to convict the appellant of the charge. If the error was not material to the magistrate's decision to convict the appellant of the charge I will conclude that no substantial miscarriage of justice has occurred by reason of her Honour's error and dismiss the ground of appeal pursuant to s 14(2) of the CAA.[54]
[54] WS v Gardin [2015] WASC 97 [233], [238] - [239].
As is apparent from my above summary of their respective submissions, the parties agree that the question for me in determining if the magistrate's error was material to her Honour's decision to convict the appellant of the charge is whether it is reasonably possible that the error affected the verdict taking into account the gravity of the error and the strength of the case against the appellant.[55] I accept that this is the question for my determination.[56]
[55] Appellant's Submissions, par 22; Respondent's Submissions, par 19 and 23.
[56] Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365 [600] - [610]. See also WS v Gardin [241].
I do not accept the appellant's submission that the magistrate's error was material to her Honour's decision to convict it of the charge. I do not do so for three reasons.
First, it is apparent from reading the entirety of the relevant portion of the conviction reasons that what was central or essential to the magistrate's ultimate finding that the odour unreasonably interfered with Ms Joss' comfort, convenience and amenity was not her Honour's erroneous finding that Ms Joss detected the odour for one hour (as opposed to 20 minutes), but rather her Honour's finding that the odour was strong, continuous, lingering and offensive, did not lessen during the time that Ms Joss was outside her house, and was sufficient to prevent Ms Joss from being able to exercise her dog in her backyard.[57] The magistrate's finding that the odour was strong, continuous, lingering and offensive, did not lessen while Ms Joss was outside her house and was sufficient to prevent Ms Joss from being able to exercise her dog in her backyard, was not at all dependant on her Honour's erroneous finding that Ms Joss had detected the odour for one hour.
[57] Conviction reasons, ts 53 - 54.
Second, it is apparent from the sentence reasons that the magistrate, despite having acknowledged the factual error that she had made and having accepted that Ms Joss only smelt the odour between 4.45 pm and 5.05 pm, was still satisfied beyond reasonable doubt that the odour had unreasonably interfered with Ms Joss' comfort, convenience and amenity, this being the finding her Honour had made in the conviction reasons. Thus immediately after expressing her acceptance of the fact that Ms Joss had detected the odour for a 20 minute period rather than for a one hour period the magistrate said the following (emphasis added):[58]
In determining the seriousness of the unreasonable interference at that time I consider that she was outside in her garden to play with her dog. The odour that she described was a rotten egg or sulphur smell and was so strong that she was driven back inside…
It was a very strong, offensive smell that drove her inside, and then she had to leave her house so that she could exercise her dog. Overall in relation to charge 4, two residents were affected, and I reject the submission that that falls at the very low end on the scale of the seriousness.
[58] Sentence reasons, ts 5 - 6.
The fact that the sentence reasons reveal that the magistrate was satisfied beyond reasonable doubt that the odour had unreasonably interfered with Ms Joss' comfort, convenience and amenity even though Ms Joss had only detected the odour for a period of 20 minutes as opposed to a period of one hour, reveals that her Honour would still have convicted the appellant of the offence even if she had not made the relevant error of fact.
Third, the magistrate's decision to convict the appellant of the charge was based not only on the evidence of Ms Joss but also on the evidence of Mr Cain. More specifically, on the basis of Mr Cain's evidence the magistrate found that the odour 'unreasonably interfered with his convenience and amenity at that time'.[59] It is therefore readily apparent that even if the magistrate had not made the error of fact and had found that Ms Joss detected the odour between 4.45 pm and 5.05 pm, and even if her Honour had then gone on to find that given the duration of time for which Ms Joss had detected the odour there was no unreasonable interference with her comfort, convenience and amenity, her Honour would still have found the appellant guilty of the charge on the basis that the odour had unreasonably interfered with the convenience and amenity of Mr Cain.
[59] Conviction reasons, ts 53.
For the reasons I have stated I am satisfied that it is not reasonably possible that the established error of fact affected the magistrate's verdict on the charge.[60]
[60] Wark v The State of Western Australia [609].
In relation to the second of my above stated reasons Senior Counsel for the appellant, in the course of his oral submissions, argued that whatever the magistrate said in the sentence reasons was irrelevant to the determination of whether her Honour's factual error was material to her Honour's decision to convict the appellant of the charge. Counsel argued that the magistrate was not in a position where she could say, 'Well, yes, there was a mistake there, but I would have convicted you anyway'.[61]
[61] Appeal, ts 14.
In relation to the same issue Senior Counsel for the respondent submitted that given the risk 'in some cases' of 'ex post facto' justification 'some caution needs to be exercised' in having regard to the sentence reasons in determining if the magistrate's factual error was material. Nonetheless, counsel submitted that in the particular circumstances of the appellant's case it was appropriate to have regard to the sentence reasons. In this context the respondent's counsel pointed out that at the time of the sentencing hearing the position adopted by the appellant was that the magistrate's error was a 'slip' and that it could be sentenced on the basis that Ms Joss detected the odour during the period between 4.45 pm and 5.05 pm.[62]
[62] Appeal, ts 58.
I do not accept the appellant's counsel's submission. In my opinion, as is apparent from what I have already said, there is no reason in principle why the magistrate's findings as stated in the sentence reasons should not be taken into account in determining if it is reasonably possible that the factual error that her Honour made at the time of convicting the appellant affected her verdict. In my opinion it is entirely reasonable to think that if the magistrate, after having had the factual error drawn to her attention and after having reflected on the error, came to the view, despite the position taken by the appellant, that there was a reasonable doubt about whether there had been an unreasonable interference with Ms Joss' comfort, convenience and amenity, her Honour would have made this clear to the parties.[63] Of course, any such change in position by the magistrate would not have impacted on her Honour's decision to convict the appellant of the charge given her Honour's finding that the odour emission the subject of the charge had also interfered with the convenience and amenity of Mr Cain.
[63] The magistrate heard the parties submissions as to sentence on 2 March 2023. Her Honour was provided with the Defence Sentencing Submissions prior to the hearing: sentencing hearing ts 24, 2 March 2023. Her Honour adjourned the appellant's sentencing to 9 March 2023 because she wanted to 'check some of the submissions made', to 'check some of the evidence', to 'check my findings' and to consider the parties' arguments: sentencing hearing ts 42, 2 March 2023.
Finally, I state to avoid any uncertainty on the point, that even if the sentence reasons did not reveal that the magistrate was satisfied beyond reasonable doubt that the odour had unreasonably interfered with Ms Joss' comfort, convenience and amenity even though Ms Joss had only detected the odour for a period of 20 minutes as opposed to a period of one hour, and even if the magistrate had not found that the odour also unreasonably interfered with the amenity and convenience of Mr Cain, I would still have concluded, for the first of my above stated reasons, that it is not reasonably possible that the factual error made by the magistrate affected the verdict on the charge.
I summarise my conclusions in relation to this ground as follows.
I am satisfied that the magistrate made the alleged error of fact and that the ground of appeal as pleaded is made out. Therefore, I will grant leave to appeal on the ground. However, I am not satisfied that the magistrate's error of fact was material to her decision to convict the appellant of the charge. Accordingly, under s 14(2) of the CAA I dismiss the ground on the basis that the established error of fact did not occasion a substantial miscarriage of justice.
Ground 2
Ground 2 alleges that the magistrate made an error of law in finding, on the facts as found by her Honour, that the emissions the subject of charges 1, 3, 4, 5, 7 and 12 amounted to an unreasonable interference with the convenience, comfort or amenity of any person and should have found that no unreasonable interference arose.[64] Accordingly, by this ground as pleaded the appellant does not clearly allege that the magistrate made an error of law in her identification or application of the legal principles to be applied in determining if there was an 'unreasonable emission' within the meaning of s 49(5)(a) of the Act. Nor does the appellant by this ground challenge any of the findings of fact made by the magistrate that underpinned her Honour's conclusion that the appellant's emissions the subject of the charges were 'unreasonable emissions'. Rather, the appellant's contention, as pleaded by the ground, is that the magistrate erred by concluding on the facts as found by her Honour that the emission from the premises the subject of each of the charges was an 'unreasonable emission'.
[64] The appellant is able to appeal against its conviction for the offence on the ground that the magistrate made an error of law: CAA, s 8(1)(a)(i).
Although the ground as pleaded does not clearly allege that the magistrate made an error of law in her identification and application of the legal principles to be applied in determining if there was an unreasonable emission, the appellant by its submissions does argue that the magistrate did, in one respect, make an error of legal principle.
Applicable standard of appellate review
Although the question whether there was, on the facts found by the magistrate, an unreasonable emission from the premises is evaluative in nature, it involves the application of a legal standard in respect of which there is only one correct outcome; the emission from the premises was either unreasonable or it was not. No question of discretion arises. Accordingly, and as both parties accept, in determining the ground of appeal the standard of appellate review that I must apply is the 'correctness standard' rather than the 'deferential standard'.[65]
Definition of 'unreasonable emission' - meaning of 'amenity'
[65] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [35] - [50]; Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366 [124] - [129].
I have already set out the terms of s 49(1) which contains the definition of 'unreasonable emission' for the purposes of s 49(5)(a).
As is apparent from the definition of 'unreasonable emission', it is the interference with the 'amenity of any person' that must be considered rather than the amenity of the locality in which the person is situated. It therefore necessarily follows, in my view, that s 49(5)(a) is concerned with the extent to which emissions might detract from the private amenity of a person's individual surroundings.
'Amenity' is not defined in the Act. However, in my opinion there is nothing in the wording of s 49(1) or any other provision of the Act that indicates that 'amenity' as it appears in s 49(1) is not to be given its ordinary meaning.
The Macquarie Dictionary (online edition) defines 'amenity' to mean 'the quality of being pleasant or agreeable in situation, prospect, disposition etc; pleasantness'. The Oxford English Dictionary (online edition) defines 'amenity' to mean 'with reference to a place or location, the quality of being pleasant, appealing, agreeable, or advantageous in terms of situation, aspect, appearance, climate, etc'. It follows that for the purposes of s 49(1) the amenity of 'any person' is the pleasantness of the person's situation, or in other words, the pleasantness of their individual surroundings.
Parties' submissions - summary
Appellant
The appellant submits that the analysis of whether emissions are unreasonable in similar, but not identical, offence provisions has been held to incorporate factors relevant to private nuisance at common law.[66]
[66] Fletcher v May [2001] QDC 81 [28]; Appellant's Submissions, par 32 and 37.
The appellant submits that the inquiry as to whether an emission is an 'unreasonable emission' is objective and therefore does not turn on an examination of whether the subjective intentions of a resident on a particular day were in fact frustrated.[67] The appellant submits that where the evidence of a resident was that they intended to use their property in a particular way on a particular day (for example, by mowing their lawn) and that an odour interrupted their plan, the relevance of such evidence is limited to showing that the emission was capable, objectively, of having that effect on a reasonable person.[68] The appellant submits that the proposition that a witness subjectively intended to use their property in that way at that time does not tend for or against any interference being unreasonable.[69] As Senior Counsel for the appellant put the argument in the course of his oral submissions and in response to some questioning by me:[70]
We would have to accept that the particular experience and the reaction of a particular individual to an odour is relevant insofar as it is some indication of the nature and extent of the odour and its capacity or potential capacity to interfere, but it's not determinative of whether or not it's unreasonable. One has to make an assessment of the individual and the potential impact on the broader community around the individual to work out whether or not that isolated experience actually does tell you enough about the odour in order to reach the conclusion that one needs to reach…
[67] Ammon v Colonial Leisure Group Pty Ltd [120]; Appellant's Submissions, par 35 and 37.
[68] Appellant's Submissions, par 38.
[69] Appellant's Submissions, par 38.
[70] Appeal, ts 22.
The appellant submits that from private nuisance authorities and analogous offence authorities, the following non-exhaustive list of factors should be considered in determining if an emission is an 'unreasonable emission' within the meaning of s 49(5)(a) of the Act: [71]
1.The nature, strength and extent of the odour;[72]
2.The nature of the interference (whether amenity or health impacts);
3.The frequency of the odour within the relevant charge period;[73]
4.The duration of the odour within the relevant charge period; [74]
5.The location of the odour, including the pre-existing proximate industrial areas and the effects of that industry on the area generally;[75]
6.The social utility of the appellant's activities which led to the generation of the odour;[76] and
7.Any hypersensitivity of particular residents which differentiate their reactions to those expected of an ordinary person.[77]
[71] Appellant's Submissions, par 36.
[72] Ammon v Colonial Leisure Group [120]
[73] Crowther v State of Queensland [2002] QPEC 79 [8].
[74] Crowther v State of Queensland [8].
[75] Ammon v Colonial Leisure Group [121]; St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 [57].
[76] Ammon v Colonial Leisure Group [121].
[77] Ammon v Colonial Leisure Group [121].
The appellant submits that having regard to the above identified factors, none of the odours found by the magistrate to have been emitted resulted in a level of unreasonableness sufficient to trigger s 49(5)(a) of the Act and attract criminal culpability.[78] The appellant submits that although all of the odours emitted by the appellant the subject of the charges were found to be unpleasant, and in some cases were found to be strong, all other relevant factors pointed against the conclusion that the emissions were unreasonable.[79] The appellant submits that this is so given the following:[80]
[78] Appellant's Submissions, par 44.
[79] Appellant's Submissions, par 46.
[80] Appellant's Submissions, par 46.
1.In the case of each charge a very small number of people were affected (varying between one and three people);
2.All the odours were of exceptionally low frequency appearing in most cases once, or in some cases twice;
3.All the odours persisted for only very short periods of time; many persisted for less than an hour, some lasted in the order of only one or two hours and the longest period for which an odour persisted was six hours. None of the odours persisted for whole days or nights or over the course of multiple days or weeks;
4.Many of the emitted odours were intermittent even when they were present;
5.Each odour was capable of causing only temporary and relatively mild inconvenience (for instance, by causing residents to alter their plans by moving inside their houses or to different locations for short periods of time). No long term effects were caused by any odour (such as causing people to move away from the area);
6.No health effects or welfare effects were caused;
7.All the residents were present in a residential suburb which was relatively proximate to various pre‑existing industry, including the premises;
8.The odours arose from the appellant undertaking a socially valuable industrial process at premises which had been operating for many decades without an offence being committed and in circumstances in which the intensity of the activities has been scaled down over time; and
9.The odours were emitted at a time when the appellant's kilns were running in a manner which was not in any way unusual (to the contrary, the kilns were operating in the manner intended using the feed and fuel source they were designed to use).
The appellant summarises its position by submitting that the exposure in the case of each charge 'to a somewhat unpleasant odour…on an isolated occasion, for a short period of time, often intermittently, with very limited and only temporary effects on the convenience of very few [residents], in a suburb proximate to pre‑existing industry, resulting from a useful social industrial process being operated in a [normal] manner, should not be held to satisfy the high statutory threshold of unreasonableness sufficient to justify criminal sanction'.[81]
[81] Appellant's Submissions, par 47.
The appellant further submits that the magistrate erred by placing significant weight upon the actual inconvenience suffered by the residents, having regard to their subjective plans, which were unknowable to the appellant. The appellant submits that in this regard the magistrate's analysis impermissibly adopted a subjective, rather than an objective, approach. It is in this respect that the appellant, despite the terms of the ground of appeal, in effect asserts that the magistrate did make an error of legal principle.[82]
[82] Appellant's Submissions, par 48.
The appellant submits that the court should substitute its own view on the question of the unreasonableness of the emissions and find none of the emissions reached the high threshold necessary for conviction.[83]
Respondent
[83] Appellant's Submissions, par 49. In the course of his oral submissions Senior Counsel for the appellant made the point that although the ground applies to all the charges it is not an 'all or nothing proposition' and that it is 'entirely possible' that in applying the correctness standard I could reach a conclusion that the ground succeeds in relation to some charges but not others: Appeal, ts 24.
The respondent submits that the following factors and principles should be considered in determining if an emission is an 'unreasonable emission' within the meaning of s 49(5)(a) of the Act (although in doing so he notes that the factors identified substantially overlap with those identified by the appellant):[84]
1.The principles derived from tort cases in private nuisance (even though not all the principles apply with the same force and effect in the context of the statutory scheme in which s 49(5) appears);[85]
2.The FIDOL factors;
3.Whether the odour emission arose from ordinary operations or an accident or aberration, and whether the odour emission is likely to recur; [86]
4.Whether the appellant could have prevented an odour from being emitted;
5.The amenity of the area assessed without reference to the appellant's activities that form the subject of the charge;[87]
6.The extent to which residents moving into the area could reasonably expect to experience interference from pre-existing uses;[88]
7.The social or public interest in the appellant's activities;[89] and
8.The principle that a finding of unreasonable interference must justify the imposition of a criminal penalty.
[84] Respondent's Submissions, par 28.
[85] Ammon v Colonial Leisure Group [120]; Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287 [118] ‑ [119].
[86] Cohen v City of Perth [2000] WASC 306 [158(4)].
[87] Uren v Bald Hills Wind Farm [2022] VSC 145 [229] - [241].
[88] Campbelltown Golf Club v Winton [1998] NSWCA 51.
[89] Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [119]; Uren v Bald Hills Wind Farm [242] - [243].
The respondent submits that the magistrate's approach to the determination of whether the appellant emitted an unreasonable emission from the premises was consistent with the factors and principles identified in the preceding paragraph.[90] The respondent submits that the magistrate's findings about reasonableness were made taking into account the context and all the relevant circumstances on the facts.[91]
[90] Respondent's Submissions, par 29.
[91] Respondent's Submissions, par 29.
The respondent submits that on a proper application of the law the magistrate's findings of unreasonableness were correct and followed from the facts found by her Honour.[92] The respondent submits that the magistrate did not place an impermissible amount of weight on the actual inconveniences suffered by the residents as a result of the odour emissions.[93] The respondent submits that the magistrate did not impermissibly adopt a subjective rather than an objective approach in relation to whether any interference with the comfort, convenience or amenity of a resident was unreasonable.[94] The respondent submits that a finding that an odour was the sole cause for a resident to change their plans is, among other things, a factor that is relevant to the assessment of whether there was an unreasonable interference with the person's convenience, comfort or amenity.[95] The respondent submits that the magistrate was correct in taking into account the impact of the odour emission on the particular resident's activities because this is a factor that is directly relevant to the determination of whether the emission unreasonably interfered with the comfort, convenience or amenity of that person.[96]
[92] Respondent's Submissions, par 30.
[93] Respondent's Submissions, par 30 and 44.
[94] Respondent's Submissions, par 44.
[95] Respondent's Submissions, par 38.
[96] Appeal, ts 65 - 66.
The respondent submits that the magistrate did not err as alleged and that the ground should be dismissed.
FIDOL factors
As I have pointed out, the respondent submits that in determining if an emission is an 'unreasonable emission' within the meaning of s 49(5)(a) of the Act the FIDOL factors should be taken into account. The respondent's submission in this regard is founded on evidence given at the appellant's trial by the prosecution witness Mr Phillipe Najean. Mr Najean is an environmental and chemical engineer with expertise in the area of odours and odour management.[97] Mr Najean gave evidence in relation to five specific parameters that are used throughout the world to assess 'odour annoyance'.[98] He testified that the five parameters are commonly referred to as FIDOL, with each of the five letters referring to one of the specific parameters as follows:
1.'F' stands for frequency, that is, how often an odour impacts a receptor;
2.'I' refers to intensity, that is, the odour concentration;
3.'D' stands for duration, that is, for how long the receptor is exposed to the odour;
4.'O' refers to the offensiveness of the odour, that is, the extent of the unpleasantness of the odour; and
5.'L' refers to the location at which the odour is experienced by the receptor.
Magistrate's approach to the unreasonableness assessment
[97] ts 696, 4 August 2022.
[98] ts 706 ‑ 707, 4 August 2022.
In relation to the determination of whether the relevant emissions were unreasonable emissions as defined by s 49(1) of the Act the magistrate identified the principles that she had applied, and the findings of general application that she had made, as follows:
1.The question of reasonableness must be applied by looking at the ordinary meaning of the word and taking into account the context and all the relevant circumstances on the facts;[99]
[99] Conviction reasons, ts 44.
2.In considering reasonableness she was 'considering an unreasonable interference that justifies the imposition of a criminal penalty';[100]
[100] Convictions reasons, ts 44.
3.In assessing whether an interference is unreasonable 'one consideration' is the FIDOL factors, even though they are not referred to in s 49 of the Act;[101]
4.In relation to the issue of frequency, she was required to determine if there had been an unreasonable interference to a person on a particular date and not generally;[102]
5.In assessing whether an interference was unreasonable other relevant factors were whether the emission prevented a person from having the full benefit of their home, whether there was evidence of the person having had to cease activities, whether the interference was likely to be only temporary, whether the emission was due to a short-term unforeseen event and the social or public interest value of the appellant's activities;[103]
6.With respect to the social or public interest value of the appellant's activities, the appellant's contribution to the economy and the use of lime is a relevant factor in the consideration of reasonableness; it is a question of weight.[104] The test to be applied is 'whether the activities in question, the production of lime, justifies the interference that they cause, while also taking into account all other relevant factors relevant to reasonableness';[105]
7.The social or public interest value of the appellant's activities is one of the many factors to weigh up and to take into account in addition to all the relevant factors in determining the reasonableness of an interference against each person the subject of a charge;[106]
8.In considering whether the amenity of a particular resident had been interfered with she was guided by legal decisions on amenity in the tort of nuisance;[107]
9.In considering the issue of amenity she accepted that the residents all lived in a 'mainly residential area'; not a locality mainly occupied for the conduct of trades; [108]
10.It is not correct that residents of Beeliar should be able to have a reasonable expectation that they will live as free from interference by industry as any other residential suburb in Perth. If a resident lives, for example, in the buffer zone directly north of the premises (Mr McFadyen's house) they may not be able to expect the same peace, quiet and enjoyment as a person living in a house on a lake far away from any industry. However, this does not mean that the people of Beeliar are not entitled to expect to be protected from unreasonable emissions of odour;[109]
11.Although the appellant's activities can be taken into account when assessing the character of the locality, to the extent that those activities 'are a nuisance or here, an unreasonable emission,' they should be left out of account when assessing the character of the locality;[110] and
12.She accepted the definition of amenity in the Macquarie Dictionary and the Oxford English Dictionary (as set out in the respondent's closing submissions). However, she was also required to consider whether any emission from the appellant unreasonably interfered with the comfort or convenience of any person. Although these terms overlap with amenity, they retain their own ordinary meanings.[111]
[101] Convictions reasons, ts 44.
[102] Conviction reasons, ts 44.
[103] Conviction reasons, ts 44 - 45.
[104] Conviction reasons, ts 45.
[105] Conviction reasons, ts 45.
[106] Conviction reasons, ts 45.
[107] Conviction reasons, ts 47.
[108] Conviction reasons, ts 47.
[109] Conviction reasons, ts 47.
[110] Conviction reasons, ts 47.
[111] Conviction reasons, ts 48. The definitions set out in the respondent's closing submissions were in substance those that I have referred to in par 114 above: Prosecution's Closing Submissions dated 12 August 2022 (Prosecution's Closing Submissions), par 628 - 629.
In identifying as a relevant consideration whether the interference was likely to be only temporary, the magistrate noted that the evidence of Mr Colin Powers, a representative of the appellant, was that the appellant did not intend to change the way in which it operated the premises.[112]
[112] Conviction reasons, ts 44.
Having identified the above principles and having made the above general findings, the magistrate proceeded to consider charge by charge whether for any of the 29 occasions on which she had found that a resident of Beeliar or a nearby suburb smelled an odour from the appellant's operations there had been an unreasonable interference with the resident's comfort, convenience or amenity.[113] It is, I think, worth noting in this context, given the nature of the appellant's complaint the subject of the ground of appeal, that in undertaking this task the magistrate found that although it had been established that on 17 occasions (in relation to nine residents) a resident did smell an odour that came from the premises, the odour did not interfere with the convenience, comfort or amenity of the resident to any unreasonable degree.[114] Some of these findings were based on the fact that the evidence of the relevant resident was directed at perceived impacts of the odour on their health (upon which the magistrate could not rely given the prosecution's concession that the evidence was not sufficient to prove that any reported health impacts were attributable to the inhalation of odours). However, the majority of these findings were made by the magistrate having regard to the lack of intensity of the odour, the short duration of the odour, the transience of the odour and/or the limited impact that the odour had on the resident's activities.
Analysis and decision
Applicable legal principles
[113] Conviction reasons, ts 48.
[114] Evonne Jones - conviction reasons, ts 49; Luke Allan - conviction reasons, ts 49; Joel Dimasi -conviction reasons, ts 52; Jared Bray - conviction reasons, ts 53; Mirelle Anthony - conviction reasons, ts 54; Jacinta Fitzgerald - conviction reasons, ts 55; Jared Bray - conviction reasons, ts 55; Mirelle Anthony - conviction reasons, ts 55; Andrew McFadyen - conviction reasons, ts 55; Jacinta Fitzgerald - conviction reasons, ts 56; Luke Allan - conviction reasons, ts 57; Jacinta Fitzgerald - conviction reasons, ts 59 - 60; Jacinta Fitzgerald - conviction reasons, ts 60; Jacinta Fitzgerald - conviction reasons, ts 62; Evonne Jones - conviction reasons, ts 62; Rosine Harvey - conviction reasons, ts 62; Ryan Fitzgerald - conviction reasons, ts 63.
It is clear, as is accepted by the respondent, that the test for whether an emission unreasonably interferes with the convenience, comfort or amenity of any person is an objective one.[115] In other words, whether an emission unreasonably interferes with the convenience, comfort or amenity of a person is not to be determined by reference to a person's subjective beliefs, feelings or thoughts as to the extent of the interference with their convenience, comfort or amenity. Whether a person believes or thinks or feels that their convenience, comfort or amenity has been unreasonably interfered with is not to the point. This is what is meant by the statements in the cases to the effect that the relevant test is objective.
[115] Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 [247]; Ammon v Colonial Leisure Group Pty Ltd [120].
The fact that the test for whether an emission unreasonably interferes with the convenience, comfort or amenity of any person is objective does not mean that the impact of the emission on the plans of a person is not relevant to the determination of whether the emission did unreasonably interfere with the convenience, comfort or amenity of the person. To the contrary, the fact that an emission caused a person to act in a particular way is a circumstance that can be taken into account along with all other relevant circumstances in determining if the emission was, objectively, such as to unreasonably interfere with the convenience, comfort or amenity of the person.
I note that the conclusion I have expressed in the previous paragraph is consistent with the decision of Else‑Mitchell J in Baulkham Hills Shire Council v AV Walsh Pty Ltd.[116] In that case his Honour found that it was 'truly an interference with the normal and reasonable enjoyment by…residents of their…properties that they have [to avoid offensive odours] been obliged to cease playing tennis, to abandon a barbeque, to go indoors, and even when inside to close doors and windows…' The fact that this finding was made in the context of a civil nuisance action and that there were factual differences between that case and the present case does not, contrary to the submission made by the appellant, provide a basis for concluding that the decision is not consistent with the conclusion I have expressed.[117]
[116] Baulkham Hills Shire Council v AV Walsh Pty Ltd [1968] 3 NSWLR 138; (1968) 15 LGRA 338, 355 ‑ 356.
[117] Appellant's Submissions, par 41 - 43.
As is apparent from what I have said, I do not accept the appellant's submission that the impact that an emission had on the activities of a resident is relevant only to show that the odour was 'capable objectively of having that effect for a reasonable person'. The question in determining if an emission was an 'unreasonable emission' as defined in s 49(1) is not whether the emission was capable of unreasonably interfering with the convenience, comfort or amenity of a reasonable person. The question is whether the emission did in fact, viewed objectively, unreasonably interfere with the convenience comfort or amenity of a person.
As to the factors that are relevant to the determination of whether an emission is an unreasonable emission as defined in s 49(1), there is, as is apparent from my above summaries of their submissions, a great deal of common ground between the parties. Thus both parties accept, as do I, that the factors identified in private nuisance cases as being relevant to the determination of whether an interference with a plaintiff's use and enjoyment of land is unreasonable are also generally applicable to the determination of whether an emission unreasonably interferes with the convenience, comfort or amenity of any person within the meaning of s 49(1) (although as the respondent correctly notes, the factors do not all necessarily apply with the same force and effect in the context of the statutory scheme within which s 49(5) appears). In any event, in my opinion, having regard to the various authorities referred to by the parties,[118] the factors that are of primary relevance in determining whether an emission of an odour unreasonably interfered with the convenience, comfort, or amenity of any person within the meaning of s 49(1) are as follows:
1.The nature, strength, duration and frequency of the odour within the period covered by a charge;
2.The impact that the odour had on the activities of a person or persons;
3.The nature of established uses in and character of the locality, and the extent to which residents moving into the area could reasonably expect to experience interference from pre‑existing uses;
4.The social utility of the activities which led to the emission;
5.Whether the emission of the odour arose from ordinary operations or an accident, and whether the emission is likely to recur;
6.Whether all reasonable precautions were taken to minimise any interference;
7.Any hypersensitivity of the person; and
8.The principle that a finding of unreasonable interference must justify the imposition of a criminal penalty.
[118] I have cited the authorities in my above summary of the parties' submissions.
I note that in my view the factor identified in point 1 of the preceding paragraph (nature, strength, duration and frequency of the odour) encompasses the FIDOL factors.
I accept the respondent's submission, in relation to which no issue was taken by the appellant, that in determining if the amenity of any person is unreasonably interfered with by an emission it is necessary to have regard to the person's amenity without reference to the emitting of the emission. To hold otherwise would, as the magistrate noted in the conviction reasons, enable a person charged with an offence under s 49(5) to invoke their alleged wrongdoing in emitting the odour in defence of the allegation that the emission amounted to an unreasonable interference with a person's amenity.[119]
Did the magistrate make an error of law in her identification or application of relevant legal principles?
[119] Conviction reasons, ts 47.
As I have already pointed out, although the ground of appeal as pleaded does not clearly allege that the magistrate made an error of law in her identification and application of the relevant legal principles, the appellant does in substance argue that the magistrate made an error by impermissibly adopting a subjective approach to the determination of whether the emissions the subject of the charges were 'unreasonable emissions'.
In my opinion the magistrate did not, in finding the appellant guilty of the offences, rely on any subjective belief of any resident as to whether or not the relevant emission unreasonably interfered with their convenience, comfort or amenity. Rather a reading of the conviction reasons reveals that the magistrate did nothing more than take into account, together with other relevant factors, the impact that the relevant emission had on the activities of the particular resident or residents in determining if the emission, viewed objectively, amounted to an unreasonable interference with the convenience, comfort or amenity of the resident or residents. Contrary to the submission made by the appellant, the magistrate did not err in doing so.
Further, in my opinion, and as is apparent from what I have said in par 127 - 136 above, the magistrate did not, in any other respect, err in her identification or application of the principles to be applied in determining if the emissions the subject of the charges were 'unreasonable emissions' as defined in s 49(1).
Did the magistrate err in finding, on the facts as found by her Honour, that the emissions amounted to unreasonable emissions?
Having full regard to the social utility of the appellant's activities, the extent to which residents of Beeliar and surrounding areas could expect interference from the appellant's long-standing and pre-existing activities and the principle that the interference must have been sufficiently unreasonable to justify the imposition of a criminal penalty, I am not persuaded that the magistrate erred in finding that the emissions the subject of each of the offences unreasonably interfered with the convenience, comfort or amenity of the relevant residents. In my opinion the magistrate was, on a proper application of the legal principles that I have identified and on the basis of the facts as found by her Honour, correct to conclude that the interference the subject of each offence was unreasonable. More specifically, I am satisfied of the following:
1.With respect to charge 1 and the resident Ms Jones, given the magistrate's findings set out in par 20 - 22 above as to the nature and strength of the odour detected by Ms Jones, the duration of the odour on the first of the occasions that it was detected by Ms Jones, and the impact that the odour had on Ms Jones' activities on the first of the occasions that she detected the odour (specifically, stopping the outdoor activity that she and her children were engaging in and moving herself and her children inside her house to move away from the odour), the odour unreasonably interfered with Ms Jones' convenience, comfort and amenity;
2.With respect to charge 3 and the resident Ms Fitzgerald, although the magistrate found that Ms Fitzgerald was exposed to the odour for no more than five minutes, given the magistrate's findings set out in par 25 - 26 above as to the nature, strength and continuity of the odour, and the impact that the odour had on Ms Fitzgerald's activities (specifically causing her to remove her clothes from her clothes line), the odour unreasonably interfered with Ms Fitzgerald's comfort and amenity;
3.With respect to charge 3 and the resident Mr Van Wees, given the magistrate's findings set out in par 28 - 31 above as to the nature, strength and duration of the odour detected by Mr Van Wees, the amount of time that Mr Van Wees was exposed to the odour and the impact that the odour had on Mr Van Wees' activities (specifically, preventing him from proceeding with his outside barbeque), the odour unreasonably interfered with Mr Van Wees' convenience, comfort and amenity;
4.With respect to charge 3 and the resident Ms Bursnall, given the magistrate's findings set out in par 33 - 35 above as to nature, strength and duration of the odour detected by Ms Bursnall, the amount of time that Ms Bursnall was exposed to the odour and the impact that the odour had on Ms Bursnall's activities (specifically, causing her to go inside her house and preventing her from continuing to move boxes), the odour unreasonably interfered with Ms Bursnall's convenience, comfort and amenity;
5.With respect to charge 4 and the resident Mr Cain, although the magistrate found that the odour detected by Mr Cain was intermittent and wispy, given the magistrate's findings set out in par 39 - 40 above as to the nature of the odour, the strength of the odour, the frequency with which the odour was detected by Mr Cain over a period of time, and the impact that the odour had on Mr Cain's planned activities (specifically, preventing him from spending the afternoon in his garden reading a book), the odour unreasonably interfered with Mr Cain's convenience and amenity;
6.With respect to charge 4 and the resident Ms Joss, given the magistrate's findings set out in par 42 - 43 above as to the nature, strength and duration of the odour detected by Ms Joss, the amount of time for which Ms Joss was exposed to the odour and the impact that the odour had on Ms Joss' activities (specifically, preventing her from exercising her dog in her backyard and requiring her to take her dog to the beach for its exercise), the odour unreasonably interfered with Ms Joss' comfort, convenience and amenity. This is the position despite the magistrate's findings set out in par 44 - 45 above;
7.With respect to charge 5 and the resident Mr May, given the magistrate's findings set out in par 47 - 50 above as to the nature, strength and duration of the odour detected by Mr May, the frequency with which the odour was detected by Mr May and the impact that the odour had on Mr May's activities (specifically, preventing him from having breakfast on his patio with his parents), the odour unreasonably interfered with Mr May's convenience and amenity. This is the position despite the magistrate's finding set out in par 51 above;
8.With respect to charge 7 and the resident Mr McFadyen, given the magistrate's findings set out in par 54 - 56 above as to the nature of the odour on the second of the occasions that it was detected by Mr McFadyen, the strength of the odour on the second of the occasions on which it was detected by Mr McFadyen, the duration of the odour on the second of the occasions on which it was detected by Mr McFadyen and the impact that the odour had on Mr McFadyen's activities (specifically, preventing him from mowing his lawn and compelling him to move his family inside his house), the odour unreasonably interfered with Mr McFadyen's convenience and amenity. This is the position despite the magistrate's findings set out in par 57 - 58 above;
9.With respect to charge 7 and the resident Mr May, given the magistrate's findings set out in par 60 - 61 above as to the nature, strength and duration of the odour detected by Mr May, the frequency with which Mr May detected the odour and the impact that the odour had on his activities (specifically, causing him to change his plans to have dinner outside), the odour unreasonably interfered with Mr May's convenience and amenity. This is the position despite the magistrate's finding set out in par 62 above;
10.With respect to charge 7 and the resident Ms Velasquez, given the magistrate's findings set out in par 64 - 66 above as to the nature, strength and duration of the odour detected by Ms Velasquez, the frequency with which the odour was detected by Ms Velasquez and the impact that the odour had on Ms Velasquez's activities (specifically, preventing her from leaving her front door and windows open so as to allow fresh air into her house), the odour unreasonably interfered with Ms Velasquez's convenience and amenity;
11.With respect to charge 12 and the resident Mr Dimasi, given the magistrate's findings set out in par 69 - 71 above as to the nature, strength and duration of the odour detected by Mr Dimasi, the frequency with which the odour was detected by Mr Dimasi and the impact that the odour had on Mr Dimasi's activities (specifically, preventing him from working in his garage), the odour unreasonably interfered with Mr Dimasi's convenience and amenity; and
12.With respect to charge 12 and the resident Ms Anthony, the magistrate's finding set out in par 73 - 74 above as to the nature, strength and duration of the odour detected by Ms Anthony, the amount of time for which Ms Anthony was exposed to the odour and the impact that the odour had on Ms Anthony's activities (specifically, requiring her to move her husband's birthday party inside her house), the odour unreasonably interfered with Ms Anthony's convenience, comfort and amenity. This is the position despite the magistrate's finding set out in par 75 above.
It is clear from Martin CJ's above quoted statements and his Honour's approach to the imposition of the aggregate fines, that his Honour construed s 18 of the Sentencing Act 1995 (NT) as enabling a sentencing court to impose a single aggregate fine for multiple offences that gives effect to the totality principle without requiring the court to first fix and articulate appropriate individual fines for the offences.
Sixth, and as is acknowledged by the appellant, the overwhelming weight of authority in the form of decisions of single judges of this court decided after Paolucci v The Town of Cambridge supports the position that it is not necessary for a sentencing court imposing a single fine under s 54(1) to first fix and articulate the appropriate individual fine for each offence. Contrary to the submissions of the appellant, I do not consider that these previous decisions of the court should in effect be put to one side because the argument the subject of the ground of appeal was not raised and/or because the decision of Edelman J in Paolucci v The Town of Cambridge was not referred to.
It is necessary for me, by way of further elaboration of my reasons for rejecting the appellant's submissions, to deal specifically with the appellant's above referred to reliance on the statements made by the majority in The State of Western Australia v Tumata, the statements made by McGrath J in Hayter v Thomson and the decision of Edelman J in Paolucci v The Town of Cambridge.
The statements made by the majority, Mazza and Vaughan JJA, in The State of Western Australia v Tumata upon which the appellant places particular reliance are as follows:[244]
In Pearce v The Queen [(1998) 194 CLR 610], McHugh, Hayne and Callinan JJ stated that a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality. Their Honours emphasised the importance of fixing an appropriate sentence for each offence before the totality principle is applied. The preferred approach to the application of the totality principle is to achieve an appropriate total effective sentence by making sentences wholly or partially concurrent. Another approach is to lower the individual sentences below what would otherwise be appropriate.
[244] The State of Western Australia v Tumata [109].
Accordingly, and as is apparent from Mazza and Vaughan JJA's statements, the court in The State of Western Australia v Tumata was concerned with an appeal against sentences of immediate imprisonment. It was in this context that Mazza and Vaughan JJA made the statements that they did. Their Honours were not concerned with s 54 of the Sentencing Act. In these circumstances I do not consider that their Honour's statements do provide support for the appellant's contended for position. I note further in this respect that it was also in the context of an appeal against sentences of immediate imprisonment that the majority in Pearce v The Queen made the statements referred to and relied upon by Mazza and Vaughan JJA.[245]
[245] In its submissions the appellant also points to statements made by the majority in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26], which refer to, explain and in effect endorse the statements made by the majority in Pearce v The Queen, as providing support for its contended for position: Appellant's Submissions, par 133. However, again the statements made by the majority in Johnson v The Queen were made in the context of an appeal against sentences of immediate imprisonment and therefore do not, in my opinion, provide support for the appellant's contended for position.
I turn to the appellant's reliance on McGrath J's decision in Hayter v Thomson.
Although McGrath J did, with reference to Pearce v The Queen, make the comments relied upon by the appellant, those comments were made with specific reference to the fact that the magistrate had erroneously imposed a global sentence of imprisonment for seven offences. It was in this context that his Honour made the comments that he did.[246] However, and as is apparent from the statements made by McGrath J quoted in par 266 above, his Honour expressly recognised that there is one circumstance in which the court may impose a single sentence for two or more offences, specifically the circumstance set out in s 54(1) of the Sentencing Act. Thus the appellant's reliance on McGrath J's statements in Hayter v Thomson is misplaced. A reading of McGrath's statements in the context of his reasons as a whole reveals that his Honour accepted that s 54(1) contains an exception to the general rule in the sense that it permits the imposition of a single fine for multiple offences without the need for individual sentences to be fixed and articulated in respect of each offence.
[246] Hayter v Thomson [44] - [50].
I turn to the decision of Edelman J in Paolucci v The Town of Cambridge which both parties accept is the only decided case in this State which deals expressly with the interaction between the principle that separate sentences should be imposed for separate offences, the totality principle and s 54(1) of the Sentencing Act.
In Paolucci v The Town of Cambridge the magistrate was required to determine appropriate sentences on pleas of guilty for two offences under the Local Government (Miscellaneous Provisions) Act 1960 (WA) and one offence under the Planning and Development Act 2005 (WA). All the offences arose from the same set of circumstances, which involved a building project, and all were continuing offences pertaining to overlapping but different lengths of times.[247]
[247] Paolucci v The Town of Cambridge [25].
The statutory penalty for two of the offences was a fine and a daily penalty and the statutory penalty for the third of the offences was a fine only. The sentencing magistrate imposed a single fine for all three offences, but then imposed three separate daily penalties in relation to each offence in addition to the single fine (including erroneously for the offence which did not provide for a daily penalty).[248]
[248] Paolucci v The Town of Cambridge [28] - [31].
The question with which Edelman J was concerned was whether or not it was permissible for the magistrate to have sentenced the appellant to a single fine under s 54(1) of the Sentencing Act for several offences then to also impose separate daily penalties for each offence.[249]
[249] Paolucci v The Town of Cambridge [32].
In arguing that the magistrate's approach was permissible, the Town of Cambridge contended that the reference in s 9(7) of the Sentencing Act to 'any other penalty' included a single fine imposed under s 54(1) so that 'a daily penalty' could be imposed in addition to a single fine imposed under s 54(1).[250]
[250] Paolucci v The Town of Cambridge [37] - [38].
Edelman J did not accept the Town of Cambridge's submission for four reasons. The second of the reasons expressed by his Honour, upon which the appellant places reliance, was as follows (citations omitted):[251]
Secondly, although there is no discussion of s 54 of the Sentencing Act in the second reading speech, that section was enacted against the background of the common law principle that 'a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality'.
The construction proposed by the Town of Cambridge puts the cart before the horse. It suggests that the legislative purpose of these provisions was to permit a single fine to be awarded for multiple offences before, or at least separately from, the determination of the appropriate sentence for each offence including a daily penalty, the daily penalty is then added to this single fine.
[251] Paolucci v The Town of Cambridge [41] - [42].
In my opinion the statements made by his Honour must be read in the context of the specific question that was raised by the ground of appeal before his Honour, specifically whether it was permissible for the magistrate in that case to impose a single fine for several offences and then separate daily penalties for each offence. That is, the 'cart before the horse' that Edelman J referred to is the notion that a single fine can be imposed for multiple offences before or separately from the daily penalty, which may then be imposed on top of the single fine, separately in relation to each offence. In other words, in my respectful view his Honour's statements were not intended to be read and should not be read as requiring in a case such as the present, which does not involve daily penalties, the fixing and articulation by the sentencing judicial officer of each individual fine before arriving at a total fine commensurate with the overall criminality of the offender.
Finally, if contrary to the view I have expressed Edelman J's statements should be read as providing support for the appellant's contention the subject of this ground of appeal then, with respect and for the reasons I have enunciated in par 269 - 284 above, I take a different view to his Honour and prefer the approach to s 54(1) that has been adopted in a number of decisions of this court that post-date his Honour's decision.
For the reasons I have given the magistrate did not err by not first fixing and articulating appropriate individual fines for the offences before applying the totality principle and imposing a single fine pursuant to s 54(1).
Of course, nothing I have said should be taken as indicating that a sentencing judicial officer should not, or is not permitted, to go through the process of determining (with or without articulating) individual fines for multiple offences before imposing a single total fine pursuant to s 54(1) if they consider that to do so will facilitate the imposition of a single total fine that does not contravene the totality principle. Whether a sentencing judicial officer decides to go through this process is a matter for their discretion. My decision is simply that there is no obligation on a sentencing judicial officer to go through such a process.
The ground does not have reasonable prospects of success. I refuse leave to appeal on the ground.
Ground 8
By ground 8 the appellant alleges that the sentence imposed by the magistrate, a fine of $290,000, is manifestly excessive.
The ground of appeal does not allege an express error by the magistrate. Rather, the ground alleges an implied error, specifically that the magistrate erred by concluding that the only appropriate sentence was a fine of $290,000. In essence, the appellant, while not suggesting that a disposition other than a fine was appropriate, argues that a lesser fine should have been imposed.
Sentencing remarks
It is convenient at the outset in dealing with this ground of appeal to refer in some detail to the magistrate's sentencing remarks.
The magistrate commenced her sentencing remarks by stating that she needed to ensure that any sentence she imposed must be commensurate with the seriousness of the offence and that in determining the seriousness of the offence she was required to take into account the maximum penalty for the offence, the circumstances of the offending, any aggravating factors and any mitigating factors.[252]
[252] Sentence reasons, ts 3.
The magistrate noted that the maximum penalty for each offence was a fine of $125,000.[253]
[253] Sentence reasons, ts 3.
The magistrate found that 'looking at the seriousness of the offending overall in terms of the criminality' the appellant's offending did not fall at the highest end of the scale of seriousness, but also did not fall at the low end of the scale of seriousness. Her Honour found that the offending, viewed overall, fell 'somewhere in between' the low end and the highest end of the scale of seriousness.[254]
[254] Sentence reasons, ts 3.
The magistrate next stated that she wanted to say what her view was in relation to the 'interferences' experienced by the residents the subject of the offences.[255] In expressing her view in relation to this issue the magistrate made the following findings as to where some of the offences fell in the scale of seriousness for offences of their type:[256]
1.In relation to charge 3, three residents were interfered with on two different days. The offence was a serious example of interference with amenity, comfort and convenience. It was not at the highest end of the scale but it was at least at the medium level on the scale of seriousness;[257]
2.In relation to charge 4, two residents were affected. Contrary to the submission made by the appellant the offence did not fall at the very low end on the scale of seriousness; [258]
3.In relation to charge 7, the offence was a serious offence because three residents were affected. The offence fell within the medium level on the scale of seriousness; [259] and
4.In relation to charge 12, given that two residents had their amenity, comfort and convenience significantly interfered with over the course of several hours the seriousness of the offence '[approached] the medium range of seriousness'.[260]
[255] Sentence reasons, ts 3.
[256] Sentence reasons, ts 4 ‑ 8.
[257] Sentence reasons, ts 4 - 5.
[258] Sentence reasons, ts 6.
[259] Sentence reasons, ts 7.
[260] Sentence reasons, ts 8.
With respect to charges 1 and 5, although the magistrate did refer to the nature and extent of the unreasonable interference that she had found that the residents had suffered, her Honour did not expressly state her assessment of where the offences fell within the range of seriousness for offences of their type.
After making her above referred to findings the magistrate stated that she would 'next…go to, again, an assessment of the overall offending'.[261] The magistrate noted that in total 11 residents had been affected with one of these residents (Mr May) being affected by two of the offences.[262] The magistrate noted that the offending occurred on seven different days over a period of four months and that many of the residents had their amenity, comfort and convenience significantly interfered with.[263] However, the magistrate did not at this point proceed to make any statement that expressly dealt with her 'assessment of the overall offending'. Rather, the magistrate turned to deal with the issue of mitigating factors.[264] The magistrate expressly identified the following mitigating factors:
1.The appellant had been operating for almost 70 years and had no prior convictions;[265]
2.The appellant had spent substantial time, and had incurred substantial expense, in attempting to rectify the ongoing odour issue by doing trials to reduce the potential odours being emitted from the kiln stacks and that the appellant had been doing this for a considerable period of time both before and since the commission of the offences;[266]
3.The appellant cooperated with the investigation through its provision of requested kiln data and liaising with the Department;[267] and
4.The appellant is a good corporate citizen that engages with the community by participating in various projects.[268]
[261] Sentence reasons, ts 8 ‑ 9.
[262] Sentence reasons, ts 8 ‑ 9.
[263] Sentence reasons, ts 8 ‑ 9.
[264] Sentence reasons, ts 9 ‑ 12.
[265] Sentence reasons, ts 9.
[266] Sentence reasons, ts 11.
[267] Sentence reasons, ts 11.
[268] Sentence reasons, ts 11.
With respect to the first of the identified referred to mitigating factors, the magistrate stated that the fact that the appellant had no prior convictions was a 'significant' mitigating factor and that she would take this into account and lower the penalty accordingly.
The magistrate dealt at some length with the issue of remorse.[269] Her Honour was not satisfied that the appellant had demonstrated genuine remorse or a full acceptance of responsibility for the offences.[270] In this respect the magistrate, after referring to general principles relating to remorse as a mitigating factor,[271] said the following:[272]
…The defence submits that substantial time and expense by [the appellant], in their attempts to rectify ongoing odour and its continued efforts and its transparent engagement with the community are best evidence of genuine remorse…
And when I queried what of that showed remorse post-offence and post-conviction, counsel for the defence conceded that most of those submissions relate to earlier times…
…[I]t was submitted that given [the appellant's] operations and kilns are all designed around using shell sand to produce lime, and it was and is necessary to heat the shell sand to produce lime, it is apparent that [t]here is unfortunately no easy solution to the issue.
But while noting [the appellant's] licence does not prohibit an odour per say [sic], [the appellant] is continually reviewing its operation to mitigate and eliminate the risk of any odour emissions from the kilns at [the premises]. There was evidence at trial that indicated that other solutions are available to reduce the odour emissions. One such solution is to use limestone rather than shell sand, although it was noted that that would be a significant expense to the company.
The evidence at the trial also indicated another shorter‑term solution. The odour is much more likely to travel in a flume to the residential area when there is a strong sea breeze. So it appears that if the shell sand feed rate was reduced during those times, the impact of odour on the residents would lessen. This would have been apparent, at the latest, some time in late 2019 but [the appellant] has not adjusted the feed rates to reduce odour emissions at those high-risk times.
If they had done so, that would indicate substantial remorse in my view and would involve a significant reduction in the sentence. Reference was made also to the [appellant's] newsletter that was published in December 2022 …
At the next paragraph [of the newsletter], it states … [that] WA Operations Manager of [the appellant] said that whilst the verdict on the six charges was disappointing, the team was focused on continuing the trials, as per the works approval, to reduce potential odour in the kiln stacks. As the prosecution has pointed out, an expression of disappointment is not an apology.
It is also questionable whether it is even an acceptance of responsibility. In relation to remorse on the evidence before me, I am not satisfied on the balance of probabilities that [the appellant] has demonstrated real and a genuine remorse for its offending in 2019.
[269] Sentence reasons, ts 9 ‑ 11.
[270] Sentence reasons, ts 11.
[271] Sentence reasons, ts 9 - 10.
[272] Sentence reasons, ts 10 ‑ 11.
The magistrate dealt with the issue of deterrence.[273] The magistrate stated that the emissions that resulted in the appellant's conviction for the offences were not the result of an uncharacteristic aberration. She stated that in terms of the 'need for personal and general deterrence' the appellant continued to use shell sand and the emissions continued. The magistrate noted that the appellant was licensed to use shell sand but that it was required to do so in a way that complied with the Act. Her Honour then continued:[274]
… [The appellant] has advised that odour reduction trials are currently being undertaken. In August 2022, they were approved a works approval for [the appellant] to conduct trials and explore ways to reduce the risk of odour and stacks [sic]. It relates to changing the feed location of shell sand and the temperature profile of kiln 6 and the trials, I've been advised, to continue until May 2023.
However, to date, in the four years since the current offences occurred, there has been nothing that has solved the continuing risk of unreasonable emissions of odour being released from the kilns during the shell sand production process. The fact that the charges were a result of everyday business operations rather than due to an accident or an aberration, and those business - everyday business operations continue, personal deterrence is a factor that I must take into account in sentencing.
[273] Sentence reasons, ts 12.
[274] Sentence reasons, ts 12.
In relation to general deterrence, the magistrate said the following:[275]
General deterrence also is a significant sentencing factor. Commercial and indeed other entities need to be discouraged from operating outside their licence, particularly in my view, businesses making large, monetary profits in the business that is the subject of the licence and subject to the [Act] provisions. The sentence needs to be of sufficient magnitude to change the economic calculus of such businesses in relation to complying with section 49(5) of the Act.
[275] Sentence reasons, ts 12.
The magistrate then proceeded to make the comments quoted in par 256 above.
Parties' submissions
Appellant
The appellant's submissions in support of this ground can be distilled down to four essential propositions:[276]
1.The sentence imposed was roughly 39% of the maximum available, which is a high percentage for a first offence;[277]
2.The seriousness of the offending was very low to low;[278]
3.There were mitigating factors, specifically the appellant's good corporate citizenship, its cooperation with the investigation, its expenditure on odour mitigation solutions and the benefits that it provides to the State;[279] and
4.Given the matters referred to in points 1 ‑ 3 above the fine imposed was manifestly excessive.
[276] Appellant's Submissions, par 183 and 198.
[277] Appellant's Submissions, par 183 and 198.
[278] Appellant's Submissions, par 184 and188 ‑ 197.
[279] Appellant's Submissions, par 185.
As part of its submissions the appellant contends that given that at least some of the offences fell at the very low end of the range of seriousness, the total fine imposed by the magistrate reveals that her Honour must have concluded that some of the offences warranted the imposition of a fine that was well over 40% of the maximum penalty available and that this conclusion was erroneous. Given that the contention assumes acceptance of the proposition that at least some of the offences fell at the very low end of the range of seriousness and given also that the allegation the subject of the ground is that the single fine imposed was manifestly excessive, the contention is unhelpful and does not advance the appellant's argument.
Respondent
The respondent submits that in all the circumstances where the purpose of a fine is primarily to punish an offender and the appellant was and is a sophisticated corporate operation with a profitable purpose, the fine imposed, although high, was appropriate in all the facts and circumstances and not manifestly excessive.[280]
Allegation of manifest excess - general principles
[280] Respondent's Submissions, par 127 - 134; Appeal, ts 91.
In determining whether a sentence is manifestly excessive the appellate court cannot substitute its own opinion for that of the sentencing judicial officer merely because the appellate court would have exercised the sentencing discretion differently. Rather, the appellate court must be satisfied that the sentence imposed was so unreasonable or unjust that a substantial wrong has occurred.[281]
[281] Salkilld v The State of Western Australia [2017] WASCA 168 [48]; Page v The State of Western Australia [2018] WASCA 76 [36]; Watson v The State of Western Australia [2022] WASCA 80 [52].
In determining whether a sentence is manifestly excessive, it is necessary to examine the sentence from the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances, antecedents and all aggravating and mitigating factors.[282]
[282] Watson v The State of Western Australia [43].
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in a particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. The sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case. [283]
[283] Watson v The State of Western Australia [47].
If, in a particular case, where manifest excessiveness is alleged there are no directly comparable cases, an appellate court is not precluded from deciding that the individual sentence is manifestly excessive. It merely has the consequence that the court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the excessiveness of a sentence.[284]
Analysis and decision
Statutory penalty
[284] Watson v The State of Western Australia [49].
The maximum sentence for each of the offences was a fine of $125,000. Accordingly, the maximum fine that could have been imposed by the magistrate for the offences was $750,000.
Seriousness of the offences
As I have already indicated, in its submissions the appellant attempts to challenge the express findings of the magistrate as to the seriousness of a number of the offences, asserting that the seriousness of the offending in each case was very low to low. This is impermissible. The ground of appeal does not allege an express error by the magistrate in making any of the findings that she did in relation to where a particular offence fell within the scale of seriousness for offences of its type. The ground of appeal, as I have already indicated, alleges an implied error; that is, the ground alleges that on the basis of all of the relevant findings made by the magistrate the sentence imposed was manifestly excessive.
In any event, even if it is assumed for the sake of the argument that the ground of appeal is sufficient to encapsulate the appellant's submission that the magistrate erred by failing to find that all of the offences were of low to very low seriousness, in my opinion the magistrate's express findings in relation to where the offences the subject of charges 3, 4, 7 and 12 fell in the scale of seriousness for offences of their type were correct.
As to charge 1, given the extent of the interference with Ms Jones' comfort, convenience and amenity as found by the magistrate, I would assess the offence as falling towards the low end of the scale of seriousness for offences of its type.
With respect to charge 5, taking account of the findings made by the magistrate in relation to the extent of the interference with Mr May's comfort, convenience, and amenity, I would assess the offence as falling between the low end and the middle of the scale of seriousness for offences of its type.
In my opinion, taking into account the number of offences committed, the time over which the offences were committed, the number of residents whose comfort, convenience and amenity was unreasonably interfered with and the extent to which the comfort, convenience and amenity of the residents was unreasonably interfered with, the objective seriousness of the offending, viewed overall, fell towards, albeit not at, the middle of the range of seriousness for offending against s 49(5)(a) of the Act. It follows that I do not consider that the magistrate's ultimate finding that the offending was somewhere between the low end of the scale of seriousness and the highest end of the scale of seriousness was erroneous.
In expressing the above opinions I accept, as does the respondent, that all other things being equal, an emission of an odour which interferes with the health or welfare of a person will generally be more serious than an emission of odour which interferes with the comfort, convenience or amenity of a person.
Mitigating factors
As I have already indicated, the magistrate found that there were a number of mitigating factors present in the appellant's case. It is clear from the sentence reasons that the magistrate took these mitigating factors into account in arriving at the sentence imposed for the offences.
Not guilty pleas
The fact that the appellant pleaded not guilty to the charges does not aggravate the seriousness of the offences. However, it does mean that the appellant does not attract the significant mitigatory benefit and associated significant reduction in sentence that would have accompanied guilty pleas.
Absence of remorse and absence of acceptance of responsibility
The appellant does not attract the mitigatory benefit that would have accompanied genuine remorse and a full acceptance of responsibility.
Standards of sentencing customarily observed
The parties have not been able to locate any appellate decision that deals with the range of sentence commonly imposed for an offence of the type committed by the appellant. I have not been able to locate any such decision.
The respondent has referred me to a sentencing decision of a magistrate in which the magistrate sentenced the offender for one offence against s 49(5).[285] However, as the respondent correctly notes, the differences between that case and the appellant's case are significant and the sentence imposed by the magistrate does not assist in deciding if the sentence imposed on the appellant was manifestly excessive.
Personal deterrence and general deterrence
[285] Potts v South Metropolitan Regional Council (Magistrates Court of Western Australia, AR 2728/2014, 20 April 2016).
For the reasons expressed by the magistrate, the sentencing considerations of personal deterrence and general deterrence were relevant to the exercise by the magistrate of the sentencing discretion.
Decision
As I have stated, in my opinion the appellant's offending viewed overall fell towards, but not at, the middle of the range of seriousness for offending against s 49(5)(a). However, there were a number of significant mitigating factors in the appellant's case.
Ultimately, when I take into account the statutory maximum penalty for the offences, the seriousness of the appellant's conduct in committing the offences, the importance of the sentencing considerations of personal deterrence and general deterrence and the mitigating factors, I am persuaded that the fine imposed by the magistrate was not merely high but was so unreasonable or unjust as to be manifestly excessive. In my opinion the fine was not commensurate with the overall criminality involved in the commission of the offences viewed in their entirety having regard to all relevant facts and circumstances including those referable to the offender personally and all relevant sentencing factors.
The ground of appeal has been made out.
Resentencing of the appellant
The implied error alleged by ground 8 having been established the sentencing discretion falls to be exercised afresh.[286]
[286] The State of Western Australia v Jacoby [2020] WASCA 150 [68].
I have before me the material necessary to enable me to resentence the appellant.[287]
[287] CAA, s 14(1)(d); The State of Western Australia v Jacoby [65].
In my opinion the appropriate total fine for the offences, taking into account all the factors that I have referred to in dealing with ground 8, is $245,000. In my opinion a fine of this amount is commensurate with the overall criminality involved in the commission of the offences viewed in their entirety having regard to all relevant facts and circumstances including those referable to the offender personally and all relevant sentencing factors.
Orders
For the reasons I have stated, and subject to hearing from the parties, I propose to make orders in the following terms to give effect to my decision:
1.The application for leave to appeal on grounds 2, 3 and 4 is refused;
2.The application for leave to appeal against conviction on ground 5 is allowed;
3.The appeal against conviction is dismissed;
4.The application for leave to appeal against sentence on grounds 6 and 7 is refused;
5.The application for leave to appeal against sentence on ground 8 is allowed;
6.The appeal against sentence on ground 8 is allowed;
7.The sentence of a single fine of $290,000 imposed by Magistrate Watson for the offences the subject of charge numbers FR 7345/2020, FR 7350/2020, FR 7354/2020 - 7356/2020 and FR 7358/2020 is set aside; and
8.The appellant is sentenced to a single fine of $245,000 for the offences the subject of charge numbers FR 7345/2020, FR 7350/2020, FR 7354/2020 - 7356/2020 and FR 7358/2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
8 SEPTEMBER 2023
required to announce (i) the sentences that would have been imposed for each offence had separate sentences been imposed or (ii) whether those sentences would have been imposed concurrently or cumulatively'. The equivalent, albeit differently worded, provision in Commonwealth legislation is s 4K(4) of the Crimes Act 1914 (Cth).
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