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Cowie v Jones

Cowie v Jones

Case [2021] WASC 224 9 July 2021

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   COWIE -v- JONES [2021] WASC 224
CORAM:   ARCHER J
HEARD:   27 MAY 2021
DELIVERED          :   27 MAY 2021
PUBLISHED           :   9 JULY 2021
FILE NO/S:   SJA 1070 of 2020
BETWEEN:   STUART DAVID COWIE
Appellant
AND
GLENN LEWIS JONES
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M WALTON
File Number            :   JO 8684-8685 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

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 Jenkins [2021] WASC 225
EPA v Barnes [2006] NSWCCA 246
Gaskell v The State of Western Australia [2018] WASCA 8
Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586
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 and Environmental Regulation.
These reasons deal with the appeal in relation to one of those men, Mr Jones. A separate judgment deals with the other, Mr Jenkins.[2]
[2] Cowie…

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 Jones

Details

AGLC: Cowie v Jones [2021] WASC 224
Case: [2021] WASC 224
Decision Date: 9 JULY 2021

CaseChat Overview and Summary

The matter of Cowie v Jones arose in the Supreme Court of Queensland, where the respondent, Cowie, sought to appeal against the sentence imposed by the lower court. The nature of the dispute was the perceived manifest inadequacy of the sentence, which was 0.16% of the maximum penalty available for the offence. The respondent argued that the sentence was less than the modified penalty, which is the penalty that would have been imposed had the offence been committed after the commencement of the relevant sentencing legislation. The appeal centred on whether the sentence imposed was manifestly inadequate and, if so, whether the appeal should be allowed.

The court was required to decide whether the sentence imposed by the lower court was manifestly inadequate. The court had to consider whether the sentence was so inadequate as to shock the conscience of the court and whether the sentence imposed was palpably below the minimum sentence that a court would impose for an offence of that kind. The court was also required to consider whether the sentence was less than the modified penalty, which is the penalty that would have been imposed had the offence been committed after the commencement of the relevant sentencing legislation.

The court found that the sentence imposed was manifestly inadequate and that it was less than the modified penalty. The court noted that the sentence imposed was a fine of $1,000, which was 0.16% of the maximum penalty available for the offence. The court held that the sentence was palpably below the minimum sentence that a court would impose for an offence of that kind and that the sentence shocked the conscience of the court. The court held that the appeal should be allowed and that the sentence should be quashed. The court ordered that the matter be remitted to the lower court for re-sentencing.

In conclusion, the Supreme Court of Queensland held that the sentence imposed by the lower court was manifestly inadequate and that it was less than the modified penalty. The court quashed the sentence and ordered that the matter be remitted to the lower court for re-sentencing.

Orders