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Cowie v Jenkins

Cowie v Jenkins

Case [2021] WASC 225 27 May 2021

Appeal

Manifestly Inadequate

Compensatory Damages

General Deterrence

Percentage of Maximum Penalty

Criminal Law

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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

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.
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…

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.

Continue reading Cowie v Jenkins

Details

AGLC: Cowie v Jenkins [2021] WASC 225
Case: [2021] WASC 225
Decision Date

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.

Orders