Cowie v Bacopak Pty Ltd - [2022] WASC 14 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: COWIE -v- BACOPAK PTY LTD [2022] WASC 14
CORAM:   CURTHOYS J
HEARD:   17 JUNE 2021
DELIVERED          :   20 JANUARY 2022
FILE NO/S:   SJA 1004 of 2021
BETWEEN:   STUART DAVID COWIE
Appellant
AND
BACOPAK PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D WEBB
File Number            :   MD 749 of 2020

Catchwords:

Criminal law - Appeal against sentence - Unauthorised clearing of native vegetation - Whether fine manifestly inadequate

Legislation:

Criminal Appeals Act 2004 (WA), s 14
Environmental Protection Act 1986 (WA), s 51C

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	R N Paljetak & M I Olds
Respondent	:	I R Gillon

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	Lawton Gillon Lawyers

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

Al Hussein v Commissioner for Consumer Protection [2014] WASC 296
Ayton v City of Armadale [2020] WASCA 39
Balla v Jason Aaron Nominees Pty Ltd [2019] WASC 161
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
C E Oates & Sons Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144
Chan v The Queen [1989] 38 A Crim R 337
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
KWA v Town of Cambridge [2019] WASC 444
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Munda v The State of Western Australia [2013] HCA 38
Oztran Aust Pty Ltd v Town of Port Hedland [2017] WASC 28
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sgroi v The Queen (1989) 40 A Crim R 197
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Hussian [2020] WASCA 186
The State of Western Australia v Saleh [2020] WASCA 205
The State of Western Australia v Zhuang [2021] WASCA 56
Wallam v Dent [2008] WASC 170
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

CURTHOYS J:

Introduction

On 22 December 2020, the respondent, Bacopak Pty Ltd (Bacopak), pleaded guilty to one charge of unauthorised clearing of native vegetation pursuant to s 51C of the Environmental Protection Act 1986 (WA) (the Act) in the Magistrates Court.
The magistrate imposed a fine of $2,500 and ordered Bacopak, pursuant to s 99ZA(1)(a) of the Act, to place a notice in the first 12 pages of The West Australian newspaper, within 28 days of the date of the order, at a minimum size of 8 x 12 cm.
The publication order required Bacopak to acknowledge its conviction of the charge and the likely consequences and impact that the unauthorised clearing will have on the environment. Bacopak complied with the publication order on 18 January 2021.
The appellant filed an appeal notice on 18 January 2021 seeking leave to appeal against the sentence imposed. The sole ground of appeal is that the learned magistrate imposed a sentence that was inadequate in all the circumstances and not commensurate with the seriousness of the offence.
For the following reasons, I grant leave to appeal and allow the appeal.

Factual background

Bacopak is a company controlled by sole director Mr John Nicoletti.
Between February 2015 and April 2019, Bacopak leased and occupied a 1006‑hectare property on Narla Loop Road, Corinthia in the wheatbelt region of Western Australia (the property). The property is used for sheep and wheat farming.
In March 2016, Bacopak cleared a rectangular section of native vegetation approximately 8 hectares in area from the north‑west corner of the property. Although the lessor had granted permission to clear the land, Bacopak did not have a clearing permit. The clearing was not otherwise authorised by sch 6 of the Act or reg 5 of the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA). Bacopak planted a wheat crop on the cleared area in 2016.
In the process of the land clearing investigation conducted by the Department of Water and Environmental Regulation (DWER), Mr Nicoletti said that he had cleared the land because the native vegetation had previously poisoned his sheep and interfered with cropping.[1]
[1] Affidavit of Michael Olds sworn 15 January 2021, attachment MIO2, 8 (Olds Affidavit).
On 21 March 2018, DWER directed a series of questions to Bacopak. In response to these questions, Bacopak admitted to the clearing.[2]
[2] Olds Affidavit, attachment MIO2, 9.
DWER found that the clearing was at variance with the following clearing principles set out at sch 5 of the Act:
(1)Principle 1(b) - Native vegetation should not be cleared if it comprises the whole or a part of, or is necessary for the maintenance of, a significant habitat for fauna;
(2)Principle 1(d) - Native vegetation should not be cleared if it comprises the whole or a part of, or is necessary for the maintenance of, a threatened ecological community;
(3)Principle 1(e) - Native vegetation should not be cleared if it is significant as a remnant of native vegetation in an area that has been extensively cleared; and
(4)Principle 1(g) - Native vegetation should not be cleared if the clearing of the vegetation is likely to cause appreciable land degradation.
In around July 2019, DWER requested the new leaseholder to fence off the cleared area of the property. Shortly thereafter, Bacopak attended to fencing off the area at a cost of approximately $6,000.[3]
[3] Trial ts 10 (22/12/2020).

Sentencing remarks

In sentencing Bacopak, the magistrate said:[4]
I do note that there is an absence of case law that I haven't been able to locate and I understand that both counsel have had trouble finding any case law in regards to this, but this is a sentencing exercise in regards to the Bacopak company clearing eight hectares of vegetation on a farming property …
So look, in the circumstances, as I've already indicated, general deterrence looms large. I accept that it was a small area of land in comparison to the total size of the property, however, as I've already indicated, general and personal deterrence need to be considered in the sentencing exercise.
I am going to make the order for a publication to be made in the West Australian in regards to the clearing of the land. As I say, I think that's incredibly important in terms of general deterrence, but I also acknowledge that that is an additional cost to the accused in regards to this matter. I would think a notice of that size would not come cheap in the West Australian. So I will take … the cost of doing that into account in terms of the penalty that I am going to impose.
Taking into account that I am going to make an order pursuant to section 99ZA, I am going to reduce the fine down to one of $2,500 and I am going to make the order that the acknowledgement of the clearing that has occurred will be published in that regards and in making those orders I take into account that this has been an early plea of guilty. Whilst we're dealing with a corporation I accept that the director of that corporation or that company has a longstanding history in the pastoral area and that he has been held in high regard in regards to his farming practices, but nonetheless, this is still a criminal offence which he has acknowledged and so that's the order of the court.
There will be a two and a half thousand dollar fine with the order for costs …
[4] Trial ts 15 - 17 (22/12/2020).

The ground of appeal

As already indicated, the sole ground of appeal is that the learned magistrate imposed a sentence that was inadequate in all the circumstances and not commensurate with the seriousness of the offence. The particulars are as follows:[5]
[5] Appeal notice filed 18 January 2021.
(i) The maximum penalty for a corporation that carries out unauthorised clearing contrary to s 51C of the Act is a fine of $500,000;
(ii) The offending was towards the lower end of the scale, however was still serious offending in that (as the Magistrate recognised) the clearing of land in the Wheatbelt in Western Australia is likely to lead to catastrophic impacts on both the natural environment and soils, as is evident from the amount of salinity affecting paddocks throughout the Wheatbelt;
(iii) It was necessary for the Magistrate to impose a sentence that would function as an effective general deterrent;
(iv) The fine of $2,500 imposed by the Magistrate was so low as to be negligible, in that it was only 0.5% of the maximum penalty available;
(v) Having regard to the admitted fact that the unauthorised clearing was carried out for commercial purposes (to prevent poisoning of stock and reduce interference with cropping), the Magistrate did not impose a penalty sufficiently large that it could not be regarded merely as a cost of doing business, and accordingly did not impose a sentence that would function as an effective general deterrent; and
(vi) The sentence imposed cannot be explained by mitigatory or other factors, in that:
(a) Although the Accused was entitled to a reduced sentence on the basis that it entered a plea of guilty at the earliest reasonable opportunity, the maximum discount of 25% allowed pursuant to s 9AA of the Sentencing Act 1995 is insufficient to justify the negligible fine actually imposed;
(b) While the facts did not suggest any need for personal deterrence, it was not open to the Magistrate to consider that the offence was mitigated by inadvertence or lack of understanding, since the controlling mind of the Accused was an experienced farmer who could not (and did not) claim to be ignorant of the laws restricting clearing in Western Australia;
(c) There was no evidence before the Magistrate suggesting that the Accused would not be able to pay a substantial fine (and the Accused did not make any submission to that effect), so as to provide a basis for the Magistrate to adjust the sentence in accordance with s 53 of the Sentencing Act 1995; and
(d)While the prosecution accepted that the Magistrate could take into account the cost of the Publication Order in determining an appropriate sentence, and her Honour indicated she considered this would 'come at a reasonable cost', there was no evidence before the Court as to that cost, and nothing to suggest that cost would be so significant as to justify the negligible fine actually imposed.

Appeals from magistrates' decisions

Section 8(1)(a)(iii) of the Criminal Appeals Act 2004 (WA) permits an appeal on the ground that the court of summary jurisdiction imposed a sentence that was inadequate.
The appellant requires leave to appeal.[6] The court must not grant leave to appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[7]
[6] Criminal Appeals Act 2004 (WA) s 9(1).
[7] Criminal Appeals Act 2004 (WA) s 9(2).
Whether a ground has a reasonable prospect of succeeding will depend on whether the ground has a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success.[8]
[8] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
In considering the magistrate's reasons for decision, it is not appropriate to scrutinise them with a fine-tooth comb or with an eye keenly attuned to the identification of error. That is because magistrates are required to perform their functions in a different time frame to that which applies in superior courts.[9]
[9] Strahan v Brennan [2014] WASC 190 [90].
The appellant submitted that in determining a State appeal against sentence, this court has a residual discretion to decline to allow an appeal notwithstanding error in the sentence imposed.[10] There is some uncertainty as to whether this form of residual discretion applies to appeals from courts of summary jurisdiction under pt 2 div 2 of the Criminal Appeals Act, being an appeal to a single judge of the Supreme Court.
[10] Appeal ts 12 - 13 (17/6/2021).
In relation to appeals from superior courts to the Court of Appeal, the Court has a residual discretion not to interfere with a primary judge's exercise of sentencing discretion under s 31(4)(a) of the Criminal Appeals Act. The appellant must negate any reason why the residual discretion should be exercised.[11]
[11] The State of Western Australia v Zhuang [2021] WASCA 56 [185];The State of Western Australia v Hussian [2020] WASCA 186 [143].
The discretion of this court to allow an appeal under pt 2 div 2 is sourced in s 14(1) of the Criminal Appeals Act. To the extent that a residual discretion applies in appeals to this court, it arises from, and is accordingly limited by, s 14(2). Section 14(2) provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. In the context of a sentencing appeal this will usually require the sentencing court to consider what the appropriate penalty would have been if no error had been made in exercising the sentencing discretion at first instance.[12]
[12] KWA v Town of Cambridge [2019] WASC 444 [31(2)]; Wallam v Dent [2008] WASC 170 [31].
Unlike offender appeals, State appeals are concerned with laying down principles for the guidance of sentencing courts.[13] Having regard to this purpose, it is for the appellant to negate any reason why the residual discretion under s 14(2) should be exercised.
[13] Zhuang [184].

Principles of sentencing appeals

A ground of appeal that contends that the sentence imposed was inadequate and not commensurate with the seriousness of the offence asserts implied error. That is, in all the circumstances, the sentence imposed was not one open in the exercise of a sound sentencing discretion. It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[14]
[14] Balla v Jason Aaron Nominees Pty Ltd [2019] WASC 161 [17].
In determining whether a sentence is manifestly inadequate, regard must be had to the maximum penalty for the offence, the standards of sentencing customarily imposed with respect to offences of that type, the place that the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.[15]
[15] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33]; The State of Western Australia v Saleh [2020] WASCA 205 [49]; Chan v The Queen [1989] 38 A Crim R 337, 342 (Malcolm CJ).
This court cannot substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion differently.[16]
[16] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
Section 6(1) of the Sentencing Act 1995 (WA) provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account:
(a)the statutory penalty for the offence;
(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;
(c) any aggravating factors; and
(d) any mitigating factors.^[17]
[17] Sentencing Act 1995 (WA) s 6(2).
By s 53(1) of the Sentencing Act, if a court decides to fine an offender, the court must, as far as is practicable, take into account the means of the offender and the extent to which the payment of the fine will burden the offender. A court may fine an offender even though it has been unable to find out about these matters.[18]
[18] Sentencing Act 1995 (WA) s 53(2).
In having regard to the offender's financial means, the court should not overlook the fact that the purpose of a fine is primarily to punish the offender. Accordingly, the amount of a fine must be sufficient to constitute an appropriate punishment.[19]
[19] Sgroi v The Queen (1989) 40 A Crim R 197, 200 (Malcolm CJ); Al Hussein v Commissioner for Consumer Protection [2014] WASC 296 [16].
In Sgroi v The Queen,[20] Malcolm CJ said:
The question whether the amount of a fine is within the range of a sound discretionary judgment is to be determined in the same manner and the same question when asked with respect to a sentence of imprisonment, save that in the case of a fine considerations of the offender's financial means of capacity are relevant in determining the amount of a fine which will constitute a punishment proportionate to the gravity of the offence in the light of the circumstances under which it was committed, the antecedents of the offender and, where appropriate the objective of general deterrence.
[20] Sgroi v The Queen (1989) 40 A Crim R 197, 201.
This principle has been applied to corporate offenders.[21]
[21] Oztran Aust Pty Ltd v Town of Port Hedland [2017] WASC 28; C E Oates & Sons Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144 [83] - [84].

The relevant considerations

Maximum penalty

The maximum penalty for an offence of unauthorised clearing of native vegetation under s 51C of the Act for a body corporate such as Bacopak is a fine of $500,000.[22] An offence under s 51C is a Tier 1 offence for which no modified penalty is available.[23]
[22] Environmental Protection Act 1986 (WA) s 99Q(2), sch 1, pt 1, div 2, column 3, item 8D. For an individual the Act prescribes a fine of $250,000: Environmental Protection Act 1986 (WA) s 99Q(1)(a), sch 1, pt 1, div 1, column 3, item 8D.
[23] Environmental Protection Act 1986 (WA) s 3 and sch 1, pt 1, div 2.
The maximum penalty serves as an indication of the relative seriousness of the offence. When taken and balanced with all other relevant factors, the maximum provides a yardstick against which to measure an appropriate sentence.[24]
[24] Ayton v City of Armadale [2020] WASCA 39 [61].
The fine of $2,500 imposed by the magistrate was a mere 0.5% of the maximum penalty.
The appellant submitted that s 51C, as part of div 2 of pt V of the Act, was inserted to address the deficiencies of the former legislative regime[25] under which penalties for a failure to comply were too low to provide an effective deterrent.[26]
[25] See Soil and Land Conservation Act 1945 (WA) and Soil and Conservation Regulations 1992 (WA).
[26] Appellant's outline of submissions and list of authorities filed 30 April 2021 [20] (Appellant's Submissions).
Bacopak submitted that the fine imposed in this case is higher than the maximum fine that was available under the previous regime.[27] I do not see how this submission assists in determining whether there is manifest inadequacy.

Standards of sentencing customarily imposed

[27] Respondent's outline of submissions and list of authorities filed 1 June 2021 [81] (Respondent's Submissions).

There do not appear to be any appellate sentencing authorities in relation to an offence under s 51C. Where there are no directly comparable cases, the appellate court is not precluded from deciding that an individual sentence is manifestly inadequate.[28]
[28] Balla v Jason Aaron Nominees Pty Ltd [2019] WASC 161 [26].
At the sentencing hearing, defence counsel brought to the magistrate's attention a summary of prosecutions published by DWER.[29] Defence counsel identified an offence that occurred in the Yilgarn area in which a company was charged under s 51C of the Act with the unauthorised clearing of approximately 57.3 hectares of native vegetation. The company was purportedly fined $9,000 and ordered to pay costs.
[29] Trial ts 11 (22/12/2020).
The respondent adopted the above submission of defence counsel in this appeal.[30] The respondent further submitted that it was open to or incumbent upon the prosecutor at the sentencing hearing to bring comparable cases in the summary of prosecutions to the magistrate's attention or otherwise provide guidance to her Honour based on that document.[31] The appellant submitted that it would have been impermissible for the prosecution to comment on defence counsel's submission that the appropriate penalty was a $3,000 fine by reference to the $9,000 fine imposed for the clearing of 57.3 hectares.[32]
[30] Respondent's Submissions [37].
[31] Respondent's Submissions [84].
[32] Appellant's Submissions [36]; Appeal ts 6 (17/6/2021).

The role of the prosecution in sentencing was summarised by the majority of the High Court in Barbaro v The Queen:[33]
If the judge is not sufficiently informed about what facts may or should be found, about the relevant principles or about comparable sentences, the prosecution's proffering a range may help the sentencing judge avoid imposing a sentence which the prosecution can later say was manifestly inadequate. But it will not do anything to help the judge avoid specific error; it will not necessarily help the judge avoid imposing a sentence which the offender will later allege to be manifestly excessive. Most importantly, it will not assist the judge in carrying out the sentencing task in accordance with proper principle.
What is more, unless the sentencing judge gives some preliminary indication of the sentence which he or she intends to impose, there can be no occasion for the prosecution to anticipate possible error and make some correcting submission. Even in a case where the judge does give some preliminary indication of the proposed sentence, the role and duty of the prosecution remains the duty which has been indicated earlier in these reasons: to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases. It is neither the role nor the duty of the prosecution to proffer some statement of the specific result which counsel then appearing for the prosecution (or the Director of Public Prosecutions or the Office of Public Prosecutions) considers should be reached or a statement of the bounds within which that result should fall.
[33] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [38] - [39] (French CJ, Hayne, Kiefel & Bell JJ).
The magistrate did not give a preliminary indication of the intended sentence. Having regard to the principles in Barbaro, I agree that it would have been impermissible for the prosecution to have commented on the $3,000 fine proposed by defence counsel.
Further, I am not convinced that the example from the summary of prosecutions offers much assistance in clarifying the relevant standards of sentencing.
It is important to note that no summary of prosecutions document was provided to either the magistrate or this court on appeal. Rather, defence counsel accessed the document from the DWER website and extracted one example that was referred to orally in sentencing submissions.[34]
[34] In contrast, see C E Coates & Sons Pty Ltd where the appellant provided the court a table of prosecution history.
There is no principle that summaries of prosecutions are of little or no value per se. The weight to be given to a document of this kind depends on the circumstances of each case. However, a court must have regard to the general principles concerning consistency in sentencing and the utility of comparative cases. In Hili v The Queen,[35] the majority of the High Court endorsed the remarks made by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa:[36]
Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts'. But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence'. … When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'. (footnotes omitted and emphasis added)
[35] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[36] Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 [303] - [305].
The Court further cited the plurality in Wong v The Queen[37] at [55]:
[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.
[37] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [59].
While I would not go so far as to characterise the example drawn from the summary of prosecutions document as a bare statistic, it nevertheless contains notable omissions about the circumstances of the offence such as whether other mitigating factors existed, what type of native vegetation was cleared, or the extent to which the clearing was at variance to the clearing principles. It certainly does not provide any information about the unifying principles that might reveal why the sentence was imposed.
Defence counsel seems to have appreciated the limited utility of citing this one example:[38]
As your Honour may be aware, the prosecuting authority, the Department of Water and Environmental Regulation, publishes on its website a summary of prosecutions which include prosecutions under the Environmental Protection Act. Obviously, it can be hard to rely on records of previous penalties because they are fact specific and the facts are not set out in any detail in the department's summary of prosecutions.
… Although the summary of prosecutions does not specify the type of vegetation cleared it does specify the address or region of where the offending occurred. One can reasonably assume that the type of vegetation cleared will likely depend on the area in which the clearing occurred.
[38] Trial ts 10 - 11 (22/12/2020).
Even if one was to assume that the vegetation type in both cases was the same, there is no specific information before this court to assess whether this case is truly comparable for the purposes of ascertaining the standards of sentencing customarily imposed.
In any event, the case on its own cannot reveal any sentencing patterns or even range of sentences such that it can serve as a yardstick against which to examine the $2,500 fine.[39]
[39] In this respect, the case is less useful than the table of prosecution history before Martin J in C E Oates & Sons Pty Ltd which included multiple offences. His Honour found the table to be of 'little value' in deciding the appeal: [105].
For the above reasons, I give little weight to this case in deciding the appeal.

Seriousness of the offence

The area cleared by Bacopak was not insignificant although it represented a small proportion of the entire property. The location and nature of the clearing aggravated the seriousness of the offending. I refer to the clearing principles that DWER found Bacopak had contravened set out above.[40]
[40] See [11].
While the species of vegetation cleared were not endangered, the land the subject of the clearing falls within a Federal Priority Ecological Community and a State Priority Ecological Community, being the eucalyptus woodlands of the Western Australian Wheatbelt. The vegetation was significant as a remnant of native vegetation in an area that has been extensively cleared, is highly fragmented and at high risk of salinity. It provided habitat for indigenous fauna and served as a stepping stone to other pockets of native vegetation. Clearing in an area where remnant vegetation is already at low levels accelerates species loss exponentially at an ecosystem level.[41]
[41] Olds Affidavit, attachment MIO2, 10.
The clearing was of a commercial nature. Bacopak gained an indirect commercial benefit from the preservation of its livestock and a direct commercial benefit from the wheat crop planted on the land that year.[42]
[42] Trial ts 10 (22/12/2020).
A further aggravating factor is that Bacopak conducted itself in at least partial ignorance of the requirements of the Act.[43]
[43] Trial ts 11 - 12 (22/12/2020).
The following were mitigating factors:
(1)Bacopak pleaded guilty at the first reasonable opportunity;
(2)It has no previous criminal record; and
(3)Upon the request of DWER, it promptly attended to fencing the cleared area and incurred costs of approximately $6,000 in doing so.
In my view, the offending was in the low to medium range on the scale of seriousness.
The magistrate correctly recognised that general deterrence is a factor that 'looms large' in sentencing Bacopak.[44] However, the fine imposed by the magistrate does not function as an effective general deterrent to corporate entities and is so low that it would merely be seen as the cost of doing business. The magistrate's decision to reduce the fine to compensate for the cost of the publication order was, in the circumstances, not in the interests of general deterrence.
[44] Trial ts 15 (22/12/2020).
I do not accept Bacopak's submission that merely because the fine imposed was not set out in the publication order the deterrent effect of any fine imposed would be obsolete.[45] That assumes that the function of general deterrence would be achieved by the publication order alone.

Personal circumstances

[45] Respondent's Submissions [31].

Bacopak has no previous criminal record and the charge was its first offence arising under the Act. Mr Nicoletti has through various entities been successful at farming in the Yilgarn region since 1978. There was no evidence that Bacopak was of limited financial means such that it would not be capable of paying a fine or absorbing the cost of a publication order.

Conclusion

Having regard to the above factors, I am satisfied that the $2,500 fine was manifestly inadequate.
Bacopak submitted that the court's residual discretion not to interfere with sentence should be invoked by reason of the appellant having led the magistrate into error at the sentencing hearing.[46] The fine being manifestly inadequate it cannot be said that there has been no substantial miscarriage of justice. I am satisfied that the appellant has negated any reason to exercise the residual discretion in this case.
[46] Respondent's Submissions [94].
Accordingly, I grant leave to appeal and allow the appeal.
The fine imposed by the magistrate was so low as to be negligible. The sensitivity of the environment in which the vegetation was cleared and the commercial nature of the clearing demand a significant penalty that functions as a general deterrent to other corporate entities. I consider the appropriate penalty in the circumstances to be a fine of $25,000.
I make the following orders:
(1)Leave to appeal is granted.
(2)The appeal is allowed.
(3)The sentencing decision of Magistrate Webb is set aside.
(4)The respondent is resentenced by imposing a fine of $25,000.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SB
Associate to the Honourable Justice Curthoys

20 JANUARY 2022

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   COWIE -v- BACOPAK PTY LTD [2022] WASC 14 (S)
CORAM:   CURTHOYS J
HEARD:   ON THE PAPERS
DELIVERED          :   31 MARCH 2022
FILE NO/S:   SJA 1004 of 2021
BETWEEN:   STUART DAVID COWIE
Appellant
AND
BACOPAK PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE D WEBB
File Number            :   MD 749 of 2020

Catchwords:

Costs - Application for indemnity certificate

Legislation:

Suitors' Fund Act 1964 (WA), s 10(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	Not applicable
Respondent	:	Not applicable

Solicitors:

Appellant	:	State Solicitor's Office
Respondent	:	Lawton Gillon Lawyers

Cases referred to in decision:

Barr v Farrell [2013] WASCA 211
Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242 (S)
Cowie v Bacopak Pty Ltd [2022] WASC 14
Real Estate & Business Agents Supervisory Board v Land [2009] WASCA 191
Richards v Faulls Pty Ltd [1971] WAR 129

CURTHOYS J:

Introduction

On 20 January 2022, the court allowed the appellant's appeal against sentence and resentenced the respondent, Bacopak Pty Ltd (Bacopak), for the offence of unauthorised land clearing under s 51C of the Environmental Protection Act 1986 (WA) (EP Act) by imposing a fine of $25,000. Bacopak was ordered to pay the appellant’s costs to be taxed if not agreed.[47]
[47] See Cowie v Bacopak Pty Ltd [2022] WASC 14.
At delivery of judgment, Bacopak sought an indemnity certificate pursuant to s 10(1) of the Suitors' Fund Act 1964 (WA) (the Act).
The appellant did not wish to be heard in relation to this application.
Pursuant to leave granted by the court, Bacopak filed its application and written outline of submissions in support on 28 January 2022.

Legal principles

Section 10(1) of the Act provides that where an appeal to this court on a question of law succeeds the court may grant the respondent an indemnity certificate in respect of that appeal. An indemnity certificate indemnifies the respondent for the costs which they must pay to the successful appellant in respect of the appeal and to recover their own legal costs on a taxed basis of the appeal.[48]
[48] Suitors' Fund Act 1964 (WA) s 11(1).
An appeal against a penalty or sentence on the basis of manifest inadequacy is an appeal on a question of law.[49] The question that then arises is whether the power which the fulfilment of that precondition prefers upon the court, to grant a certificate, should be exercised.
[49] Real Estate & Business Agents Supervisory Board v Land [2009] WASCA 191 [25] (McLure JA).
The principles governing the exercise of discretion under s 10(1) of the Act, as the respondent submits, were set out in Richards v Faulls Pty Ltd.[50] The discretion is a discretion to grant rather than refuse a certificate. Although the discretion is unfettered it must be exercised judicially. The respondent must show some ground calling for the exercise of the discretion in the respondent's favour. It is insufficient merely to show that the appeal has succeeded on a question of law.
[50] Richards v Faulls Pty Ltd [1971] WAR 129, 130.
The court's discretion might be exercised where the decision turns on a question of law that might at least be reasonably resolved in different ways so that in a sense the unsuccessful party might be thought to have suffered some 'misfortune' owing to a doubt about the correct rule of law to be applied.[51] A relevant consideration will be the degree to which the question of law was one of general application.[52]
[51] Richards (130).
[52] Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242 (S) [3]; Barr v Farrell [2013] WASCA 211 [13].

Bacopak's submissions

Bacopak submitted that it should be granted an indemnity certificate for the following reasons:
(a)at the time of sentencing at first instance and on appeal there was no case authority dealing with s 51C of the EP Act and no established guidelines for sentencing in respect of offences under that section;
(b)without such case authority or guiding principles there was no yardstick available to the magistrate in sentencing Bacopak;
(c)the appeal against the magistrate’s sentence was necessary, from the appellant's perspective, to obtain a superior court decision dealing with s 51C of the EP Act and to provide proper guidance for the sentencing of offences under that section; and
(d)while necessary from the appellant's perspective, it is the 'misfortune' of Bacopak that there was no case authority or guiding principles when it was sentenced at first instance which, if there were, would have likely meant that a proper sentence was imposed at first instance which would have avoided the appeal.

Analysis

There must be innumerable penalties imposed by various sections of various Acts that have not been the subject of decisions as to an appropriate penalty.
Bacopak's submissions are caught between arguing that the penalty imposed in this case will provide guiding principles of general application and yet arguing that there are no comparable cases. If there were comparable cases, then an argument that indemnity costs should be awarded on the basis that the case will provide guiding principles might succeed. However, there is a noticeable dearth of comparable cases to which the guiding principles apply so that argument cannot succeed. This is a one‑off penalty case. Bacopak has not pointed to any sections similar to s 51C of the EP Act in that Act or in similar Acts to which the guiding principles of this case might apply.
An appeal against sentence on the basis of manifest inadequacy is typical of many State appeals.
Bacopak must show some ground calling for the exercise of the discretion in its favour and it does not do this merely by showing that the appeal has succeeded on a question of law.
Although manifest inadequacy does raise a question of law, appeals against sentence are more likely to be decided on questions of fact relating to the particular circumstances rather than, say, the interpretation of a section of an Act imposing liability.
I am not satisfied that the decision is of general importance such that I should exercise my discretion in favour of Bacopak.
I accordingly dismiss the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

SB
Associate to the Honourable Justice Curthoys

31 MARCH 2022