Cowie v Jenkins

Case [2021] WASC 225


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   COWIE -v- JENKINS [2021] WASC 225

CORAM:   ARCHER J

HEARD:   27 MAY 2021

DELIVERED          :   27 MAY 2021

PUBLISHED           :   9 JULY 2021

FILE NO/S:   SJA 1071 of 2020

BETWEEN:   STUART DAVID COWIE

Appellant

AND

DOUGLAS JAMES JENKINS

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE M WALTON

File Number            :   JO 6402 of 2020


Catchwords:

Appeal against sentence - Manifest inadequacy - 0.16% of maximum penalty - Less than modified penalty

Legislation:

Environmental Protection Act 1986 (WA)

Result:

Leave to appeal granted
Appeal allowed

Category:    B

Representation:

Counsel:

Appellant : Mr E C I Fearis
Respondent : In person

Solicitors:

Appellant : State Solicitor's Office
Respondent : Not applicable

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

Brown v McGivern (Unreported, WASC, Library No 960143, 8 March 1996)

C E Oates & Sons Pty Ltd (t/as Narrogin Retravision) v Balla [2015] WASC 144

Cowie v Jones [2021] WASC 224

EPA v Barnes [2006] NSWCCA 246

Gaskell v The State of Western Australia [2018] WASCA 8

Glenorchy City Council v James (Unreported, TASSC, 18 February 1997)

Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586

Kuniczek v Lovegrove (Unreported, SC of SA, No. 37 of 1988, Judgment No. 459, 14 January 1988)

Ninyette v Holmes [2015] WASC 287

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5

Sgroi v R (1989) 40 A Crim R 197

Snowball v McDonald [2019] WASC 108

Stancombe v Commissioner of Police (No 2) [2020] QDC 173

Strahan v Brennan [2014] WASC 190

The State of Western Australia v AHD [2021] WASCA 13

The State of Western Australia v Saleh [2020] WASCA 205

The State of Western Australia v Wilson [2015] WASCA 119

Trinder v Anderson; Trinder v Quinlivan (Unreported, WASC, Library No 960216, 24 April 1996)

ARCHER J:

(This judgment was delivered extemporaneously on 11 May 2021 and has been edited to correct matters of grammar, to include complete references and, in relation to the resentencing, to include a summary and discussion of the information provided by the respondent during the hearing.)

Overview

  1. On 4 September 2020, two men pleaded guilty to breaching s 49A(3) of the Environmental Protection Act 1986 (WA) in two separate proceedings in the Magistrates Court. The learned magistrate imposed a fine on each of them of $100. His Honour also ordered that each pay costs of $350 and made a spent conviction order.

  2. The prosecutor[1] (appellant) seeks leave to appeal against the sentence imposed in each case.  The sole ground of appeal is that the sentences were inadequate in all the circumstances and not commensurate with the seriousness of the offences. 

    [1] The prosecution notice was issued by the appellant on behalf of the Department of Water…

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Cowie v Jenkins [2021] WASC 225
Case
[2021] WASC 225
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CaseChat Overview and Summary

The appeal in Cowie v Jenkins [2021] WASC 225 concerns the adequacy of a fine imposed by the Magistrates Court on Douglas James Jenkins, who pleaded guilty to breaching s 49A(3) of the Environmental Protection Act 1986 (WA) by abandoning waste on land. The State of Western Australia, through the Department of Water and Environmental Regulation, sought leave to appeal the sentence, arguing that the $100 fine was manifestly inadequate. The appeal was heard together with the application for leave. Justice Archer concluded that the fine represented only 0.16% of the maximum penalty for the offence and was significantly less than the modified penalty amount that would have applied if the CEO had determined that Jenkins met the criteria in s 99A of the Act. While the modified penalty does not establish the appropriate minimum for a fine imposed by a court, the statutory maximum penalty provides sufficient guidance. The court also considered the lack of comparable cases, the aggravating and mitigating factors, and the importance of general deterrence in such offences. Justice Archer found that the fine was manifestly inadequate and granted leave to appeal, allowing the appeal and setting aside the fine imposed by the magistrate.

In resentencing, Justice Archer imposed a fine of $3,800, to be suspended for 12 months, taking into account Jenkins' financial and personal circumstances, including his youth, early guilty plea, and lack of a criminal record. This decision highlights the importance of considering general deterrence in environmental offences and the need for fines to be commensurate with the seriousness of the offence.

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Background

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