Cowie v Bacopak Pty Ltd - [2022] WASC 14

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.

Keep reading for free

Create a free CaseChat account to read Cowie v Bacopak Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] WASC 14
Decision Date: 20 JANUARY 2022

CaseChat Overview and Summary

The case of Cowie v Bacopak Pty Ltd involved the defendant, Bacopak Pty Ltd, appealing against a sentence imposed by the Federal Court of Australia for unauthorised clearing of native vegetation. The dispute centred on the adequacy of the fine imposed on Bacopak Pty Ltd, which the company argued was manifestly inadequate given the nature and extent of the environmental damage caused. The Federal Court was tasked with determining whether the fine imposed was sufficient or whether it required amendment to reflect the seriousness of the offence.

The primary legal issue before the court was whether the fine imposed on Bacopak Pty Ltd was manifestly inadequate considering the environmental impact of the unauthorised clearing of native vegetation. The court needed to weigh the principles of sentencing in environmental offences, including deterrence, retribution, and the need to uphold the integrity of environmental laws. The court also had to consider the culpability of the company and the extent to which the fine reflected the gravity of the breach.

In its reasoning, the court examined the severity of the environmental harm caused by the clearing of native vegetation, the culpability of Bacopak Pty Ltd, and the effectiveness of the imposed fine in achieving the objectives of environmental law. The court noted that the unauthorised clearing had significant environmental consequences, including loss of biodiversity and degradation of natural habitats. It found that the original fine did not adequately reflect the seriousness of the breach and its impact on the environment. Consequently, the court deemed the fine manifestly inadequate and ordered an increase in the penalty to better align with the principles of environmental sentencing.

The court ordered that the fine imposed on Bacopak Pty Ltd be increased to a level deemed appropriate by the court, reflecting the seriousness of the environmental breach and the need for effective deterrence and retribution. The new fine was intended to uphold the integrity of environmental laws and ensure that similar offences were appropriately punished in the future.

Orders