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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] WASC 14 (S)
Decision Date

CaseChat Overview and Summary

In Cowie v Bacopak Pty Ltd, the appellant, Stuart David Cowie, appealed against a sentence imposed by the Magistrates Court on Bacopak Pty Ltd, a company controlled by John Nicoletti, for unauthorised clearing of native vegetation. The court allowed the appeal and resentenced Bacopak by imposing a fine of $25,000. Bacopak sought an indemnity certificate for the costs of the appeal pursuant to s 10(1) of the Suitors' Fund Act 1964 (WA). The court dismissed the application for an indemnity certificate.

The appeal was allowed on the basis that the fine imposed by the magistrate was manifestly inadequate, being only 0.5% of the maximum penalty available under the Environmental Protection Act 1986 (WA). The court found that the fine did not function as an effective general deterrent to corporate entities and was so low that it would merely be seen as the cost of doing business. The court considered the maximum penalty, the standards of sentencing customarily imposed, the place that the criminal conduct occupied on the scale of seriousness, and the personal circumstances of the offender in determining whether the sentence was manifestly inadequate. The court found that the area cleared by Bacopak was not insignificant and that the clearing was of a commercial nature. The court found that the fine imposed by the magistrate did not function as an effective general deterrent to corporate entities and was so low that it would merely be seen as the cost of doing business.

The court dismissed the application for an indemnity certificate. The court found that there was no case authority or guiding principles available to the magistrate in sentencing Bacopak at first instance. However, the court found that the appeal against sentence was not necessary to obtain a superior court decision dealing with s 51C of the Environmental Protection Act 1986 (WA) and to provide proper guidance for the sentencing of offences under that section. The court found that the decision was not of general importance such that it should exercise its discretion in favour of Bacopak.

Orders