Cowie v Jones
[2021] WASC 224
•9 JULY 2021
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 v Jenkins [2021] WASC 225. Although each judgment deals with a different offender, the matters that are common to each are expressed in identical, or near identical, terms.
Mr Jones did not file a notice indicating that he intended to be heard in the appeal, but he did attend the hearing. Mr Jones did not seek to argue that the fine was not manifestly inadequate.
The application for leave to appeal was ordered to be heard together with the appeal.
What follows are my reasons for concluding I should grant leave to appeal and allow the appeal.
Background
The offences
Mr Jones pleaded guilty to two charges of breaching s 49A(3) of the Environmental Protection Act.
Section 49A(3) makes it an offence to, among other things, abandon waste on land.[3]
The proceedings in the Magistrates Court
[3] It is a defence, under s 49A(4), to show that the waste was abandoned with the consent of the person who controlled or managed the land. Section 49A(2) deals with dumping waste in water to which the public has access.
The audio recording transcript of the proceedings in the Magistrates Court did not record all that transpired. The transcript is therefore incomplete. Counsel representing the prosecution on the day swore an affidavit setting out various matters she said had been said during the hearing, but which were not included in the transcript.
The Principal Registrar of this court ordered the Magistrate to provide a report of the hearing as to those parts of the proceedings that were not transcribed. His Honour's report confirmed that the audio recording did not record all that transpired. His Honour further confirmed the accuracy of the prosecutor's recollections and added some other observations in relation to what had been discussed in relation to costs.
The facts of the offending
In short, Mr Jones dumped three couches in an area of the State Forest off Warbrook Road, Jandabup. The area is a commonly used site for the unlawful dumping of waste.
At around 6.45 am on 11 January 2020, Mr Jones dumped two couches.
The following day, at about 10.00 pm, he dumped another couch.
On 13 February 2020, Mr Jones participated in a voluntary record of interview. He made full admissions. He said that he was vacating a property he had been living in and did not know what to do with the couches. He said he had previously seen waste dumped in the area. He admitted that he knew it was wrong to dump waste in the area.
On 24 February 2020, Mr Jones emailed the Department of Water and Environmental Regulation (Department), attaching:
(a)photographs evidencing that he had removed the couches; and
(b)a receipt in the sum of $31.80 from a refuse facility.
Sentencing - the magistrate's reasons
In sentencing Mr Jones for the two offences, the learned magistrate said:[4]
… So I've taken in account the plea of guilty. The fact that you've admitted your fault and you've – actually, actively went and collected it, is all mitigatory. In my view, general deterrence is the prime sentencing principle to be applied because of the reasons as set out by Ms Dias. Do you have any criminal record at all? [No.] … are you working, Mr Jones? [Yes.] … Okay then. Taking into account the principle of totality as set out in Roffey and the State of Western Australia and subsequent decisions in relation to the two charges, I'm going to give a global penalty. So the State, sometimes (indistinct) giving one penalty for both charges. Taking into account your positive actions, it seems to me that you warrant a moderated fine because of your positive actions in trying to address what occurred. So I'm going to fine you $100.
Legal principles[5]
Appeals from magistrates' decisions
[4] Transcript of the sentencing proceedings on 4 September 2020 (Sentencing Transcript), page 4. The Magistrate went on to deal with costs and made a spent conviction order.
[5] The first two sections reproduce or draw on my reasons in other judgments.
Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a sentence in the Magistrates Court to be made on various grounds, including that the court imposed a sentence that was inadequate.
Leave to appeal is required.[6]
[6] Criminal Appeals Act s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[7] This means that the ground is required to have a real, rational and logical prospect of succeeding.[8]
[7] Criminal Appeals Act s 9(2).
[8] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[9] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[10]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
Principles relating to sentencing appeals
[9] Strahan v Brennan [2014] WASC 190 [89 ‑ [90].
[10] Strahan [90].
Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in part 2 differs slightly from the framework in part 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under part 3 cannot automatically be applied to appeals under part 2.[11] There are, however, core principles that apply to appeals against sentence under both part 2 and part 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[12]
Manifestly inadequate
[11] Ninyette v Holmes [2015] WASC 287 [56(3)].
[12] Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].
An allegation that a sentence was inadequate is an allegation of implied error. To succeed, the appellant must demonstrate that the disposition is unreasonable or plainly unjust.[13]
A sentence must correspond to the seriousness of the offence
[13] The State of Western Australia v Wilson [2015] WASCA 119 [20]. See also The State of Western Australia v Saleh [2020] WASCA 205 [49] - [50].
A sentence imposed on an offender must be commensurate with the seriousness of the offence.[14] The seriousness of an offence must be determined by taking into account:[15]
(a)the statutory penalty for the offence; and
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
(c)any aggravating factors; and
(d)any mitigating factors.
Imposing a fine[16]
[14] Section 6(1) of the Sentencing Act 1995 (WA).
[15] Section 6(2) of the Sentencing Act.
[16] This section reproduces or draws upon what I wrote in Snowball v McDonald [2019] WASC 108.
If a court decides to fine an offender, the court must, as far as is practicable,[17] take into account the means of the offender and the extent to which payment of the fine will burden the offender. This requirement is subject to the requirement that a sentence imposed on an offender must be commensurate with the seriousness of the offence.[18] This means that:[19]
… whilst a court must take into account the means of an offender in considering the amount of any fine, that exercise should not result in a fine which is not commensurate with the seriousness of the offence. In some cases it may be necessary to impose a fine that is difficult for an offender to pay or even beyond the means of an offender, if a fine of any lesser amount would not be commensurate with the seriousness of the offence. This assumes that no other disposition is reasonably open.
However, the seriousness of an offence will rarely dictate the precise amount of an appropriate fine. There will usually be a range of fines that will be open to be imposed. It is in this context that the means of the offender and the extent of any burden on the offender will come into play. Where an offender is of very limited means and the burden of a fine would be very onerous, those factors will justify the imposition of a fine towards the lower end of the range that would be appropriate for an offence of the seriousness being dealt with by the court.
[17] A court may fine an offender even though it has been unable to find out about these matters: s 53(2) of the Sentencing Act.
[18] Section 53(1) of the Sentencing Act. See also Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586 [25] ‑ [26].
[19] Hussaini [25] - [26].
In having regard to the burden that a fine may impose on an offender, the court should not overlook the fact that a fine is a punishment and is intended to be a burden on the offender, to give effect to appropriate sentencing principles of punishment and general and personal deterrence.[20]
[20] Al Hussein v Commissioner for Consumer Protection [2014] WASC 296 [16].
The legislative regime provides a mechanism by which an offender may apply for a time to pay order in respect of the fine.[21] The fact that there is a mechanism to ameliorate the immediate effects of a heavy fine is a factor relevant to sentencing.[22]
[21] Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 32(1).
[22] Al Hussein [11]; C E Oates & Sons Pty Ltd (t/as Narrogin Retravision) v Balla [2015] WASC 144 [90].
In Sgroi v R,[23] Malcolm CJ, with whom Rowland J agreed said:
The question whether the amount of a fine is within the range of a sound discretionary judgment is to be determined in the same manner as the same question when asked with respect to a sentence of imprisonment, save that in the case of a fine considerations of the offender's financial means or capacity are relevant in determining the amount of a fine which will constitute punishment proportionate to the gravity of the offence in the light of the circumstances under which it was committed, the antecedents of the offender and, where appropriate the objective of general deterrence.
Determining whether a sentence is manifestly inadequate
[23] Sgroi v R (1989) 40 A Crim R 197, 201.
In determining whether or not a sentence is manifestly inadequate, the sentence should be examined having regard to the maximum penalty for the offence, sentences imposed in other cases for similar offences, the gravity of the criminal conduct on the scale of seriousness of offences of that type, and the personal circumstances of the offender.[24]
[24] Saleh [49].
If there are no directly comparable cases, the 'court is not precluded from deciding that an individual sentence is manifestly inadequate. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentencing ranges are only one pointer to the inadequacy of a sentence'.[25]
[25] The State of Western Australia v AHD [2021] WASCA 13 [48].
The relevant considerations
The maximum penalty
The maximum penalty for an offence under s 49A(3) is $62,500 for an individual.[26]
The modified penalty amount
[26] Environmental Protection Act, s 99Q(1)(b) and item 1CB in Division 1 of Part 2 of Schedule 1.
The appellant drew the court's attention to the provisions in the Environmental Protection Act by which some offences may be dealt with by administrative penalties, rather than prosecutions. 'Tier 2' offences may be dealt with by a 'modified penalty notice'. 'Tier 3' offences may be dealt with by an infringement notice. The appellant submits that the 'modified penalty' amount may provide a useful marker in determining an appropriate fine following conviction.[27]
[27] Appellant's Outline of Submissions [24].
An offence against s 49A is a Tier 2 offence.[28] Section 99A(2) of the Environmental Protection Act provides that, if the CEO[29] makes a determination that a person who committed a Tier 2 offence is a person to whom s 99A applies, the CEO is to give the person a modified penalty notice.
[28] See the definition of 'Tier 2 offence' in s 3 and item 1CB in Division 1 of Part 2 of Schedule 1 of the Environmental Protection Act.
[29] Of the Department of Water and Environmental Regulation.
Section 99A applies to an offence against s 49A(3) if:[30]
[30] Section 99A(1) of the Environmental Protection Act.
(a)the CEO is of the opinion that -
(i) the person has committed a Tier 2 offence; and
(ii)there is sufficient evidence to support the allegation of the offence;
and
…
(e)the alleged offender cooperated with officers and employees of the Department and provided information and assistance when so requested; and
(f)the alleged offender has taken reasonable steps to ensure that the circumstances giving rise to the allegation of the offence do not reoccur; and
(g)having regard to the nature and particulars of the alleged offence and to the particulars of the circumstances relating to the alleged offence, the alleged offence can adequately be dealt with under this Division.
A determination that a person is or is not a person to whom this section applies, or the fact that the CEO has not made such a determination, cannot be called into question.[31]
[31] Section 99A(4) of the Environmental Protection Act.
For a first offender, the modified penalty is to be 10% of the maximum penalty that could be imposed in court. 10% of $62,500 is $6,250.
The fine of $100 was significantly less than the modified penalty amount that would have been imposed if the CEO had determined that Mr Jones met the criteria in s 99A. It was 1.6% of what the modified penalty amount would have been.
In Brown v McGivern,[32] Pidgeon J held that, where infringement notices are issued and not paid, the penalty should usually be at least the amount of the infringement notice and usually more. His Honour said 'the whole principle of modified penalties would not work unless a proper penalty is imposed on the offence being proved.' His Honour acknowledged this was not an absolute or invariable rule 'because if there were significant mitigating circumstances, then I would see a right of the defendant to bring those circumstances to the notice of the Court and in the presence of mitigating circumstances it would be open to the Court to impose a different penalty'.
[32] Brown v McGivern (Unreported, WASC, Library No 960143, 8 March 1996). See also Stancombe v Commissioner of Police (No 2) [2020] QDC 173.
A different view has been taken elsewhere.[33] It has been pointed out that, once a matter comes to court, it is for the court to decide what the appropriate penalty is.
[33] See Glenorchy City Council v James (Unreported, TASSC, 18 February 1997) and the case there cited of Kuniczek v Lovegrove (Unreported, SC of SA, No. 37 of 1988, Judgment No. 459, 14 January 1988).
I am inclined to conclude that the modified penalty does not establish the appropriate minimum for a fine imposed by a court, even as a general proposition in a usual case. However, it is unnecessary to reach a concluded view. That is because, in my view, the statutory maximum penalty provides sufficient guidance without the need to have regard to the modified penalty amount.
Nevertheless, I consider that the modified penalty is of relevance, in that it indicates the seriousness with which offences against s 49A(3) are viewed by the legislature. It also indicates the manner in which the legislature views an offence which meets the criteria in s 99A.[34] In my view, the modified penalty of $6,250 indicates that, even for offences which do meet the criteria, deterrence should be a significant sentencing consideration.
Percentage of maximum penalty
[34] In Trinder v Anderson; Trinder v Quinlivan (Unreported, WASC, Library No 960216, 24 April 1996), Steytler J (as his Honour then was) made these observations in relation to modified penalties under the Liquor Licensing Act.
The 'maximum penalty, taken and balanced with all the other relevant factors, provides a yardstick against which to measure an appropriate sentence.'[35]
[35] Ayton v City of Armadale [2020] WASCA 39 [61].
The sentence imposed can be measured against the maximum penalty by considering the percentage of the maximum it represents.[36]
[36] See, as examples, Ayton [64] and Trinder. See also Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5 [129], [187] and [191] (primarily in the context of comparing outcomes in other cases, see [120] - [124], [171] - [187]).
The fine of $100 was 0.16% of the maximum.
Comparable cases
There do not appear to be any comparable cases.
The location on the scale of seriousness
The following matters aggravated the seriousness of Mr Jones' offending:
1.Mr Jones dumped a relatively significant domestic quantity of waste, being three couches, during two trips;
2.His decision to dump the couches was premeditated as he had seen waste dumped in the area before; and
3.He knew it was wrong to dump the couches.
The following were mitigating factors:
1.Mr Jones pleaded guilty at the first reasonable opportunity;
2.He voluntarily participated in a record of interview and fully admitted his offending;
3.He positively took action to remove the items that he had dumped; and
4.He had no criminal record.
In my view, the offending was in the low-medium range on the scale of seriousness.
The personal circumstances of the offender
The only personal matters discussed in the proceedings were that Mr Jones did not have a criminal record and was working full-time at the time he was sentenced. The prosecution notice also indicated Mr Jones' date of birth, making him 30 years old at the time of his sentence.
Analysis
The mitigating factors were significant. Even taking into account the aggravating factors, the offending was below mid-range on the scale of seriousness.
However, I consider that general deterrence is a significant factor in these types of offences. In my view, this follows from the type of conduct that is captured by s 49A(3), the maximum penalty and the amount of the modified penalty.[37]
[37] And see EPA v Barnes [2006] NSWCCA 246 [31] - [33].
Having regard to all of the factors I have discussed, I am satisfied that a fine representing 0.16% of the maximum penalty was manifestly inadequate.
Conclusion
Accordingly, I grant leave to appeal and allow the appeal. I set aside the fine imposed by the magistrate.
Resentence
Mr Jones provided information to me about his financial and personal circumstances, in response to my questions. In my view, he honestly answered my questions and was not seeking to exaggerate his difficulties at all. On the contrary, he was plainly reluctant to advance personal difficulties in order to obtain a lesser penalty.
Mr Jones works full time, and has done so since he was 15 years old. Despite this, his financial position is poor. He has limited assets and savings. A significant reason for this is his continued support of the son of his ex-partner. Mr Jones was with his ex-partner for eight years while the boy grew up and, despite the breakdown in his relationship with the boy's mother, Mr Jones considers the boy to be his son and his financial responsibility.
The offending occurred during the process of separation, which was not a good time for Mr Jones. Even now, Mr Jones is plainly under considerable stress.
I earlier set out the aggravating and mitigating factors, the seriousness of the offences and the importance of general deterrence in offences of this type. I also referred to the principles that apply to the imposition of a fine, including the need to have regard to an offender's means and the extent of the burden, while still imposing a sentence commensurate with the seriousness of the offences.
I would ordinarily have considered, having regard to the totality principle, that a total fine of $8,500 would be appropriate for the two offences. However, I am satisfied that, even with the ability to pay a fine over time, such an amount would impose too high a burden on Mr Jones. Having regard to Mr Jones' circumstances, I consider that the burden can be sufficiently ameliorated, while still being commensurate with the seriousness of the offending, by imposing a total fine of $4,500.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Research Associate to the Honourable Justice Archer
9 JULY 2021
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