HAWKINS -v- VAN HEERDEN [No 2] - [2014] WASC 226

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: HAWKINS -v- VAN HEERDEN [No 2] [2014] WASC 226

CORAM: PRITCHARD J

HEARD: 24 JUNE 2014

DELIVERED : 24 JUNE 2014

PUBLISHED : 26 JUNE 2014

FILE NO/S: SJA 1131 of 2013

BETWEEN: BRUCE MICHAEL HAWKINS
Appellant
AND
VINCENT ADAM VAN HEERDEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE J HAWKINS
File No  :JO 1683 of 2013

Catchwords:

Sale of products designed to resemble a tobacco product - Electronic cigarettes - Sentence to be imposed - Fine - Whether spent conviction order should be made

Legislation:

Sentencing Act 1995 (WA)
Tobacco Products Control Act 2006 (WA)

Result:

Respondent fined $1,750

Category: B

Representation:

Counsel:

Appellant: Ms M J Elliott
Respondent: Mr M A Perrella

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: Perrella Legal

Cases referred to in judgment:

Brewer v Bayens [2002] WASCA 271; (2002) 26WAR 510
Hawkins v Van Heerden [2014] WASC 127
M v O'Neill [2013] WASC 187
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
(This judgment was delivered extemporaneously and has been edited from the transcript.)

PRITCHARD J: Vincent Adam Van Heerden, you have been found guilty of one charge,[1] namely that on dates unknown between 24 November 2011 and 2 December 2011 you sold products designed to resemble a tobacco product, namely electronic cigarettes, contrary to s 106(a) of the Tobacco Products Control Act 2006 (WA) (the Act).
[1] Hawkins v Van Heerden [2014] WASC 127.
By virtue of s 115 of the Act, the maximum penalty for this offence, in the case of an individual who commits this offence for the first time, is a fine of $10,000.

The facts

The facts concerning the commission of the offence were as follows. On 2 December 2011 you were found to have in your possession 69 packages of electronic cigarettes. An electronic cigarette is an electronic inhaler that vaporises a liquid solution into a mist or vapour for inhalation.
At the trial you admitted that between 24 November 2011 and 2 December 2011, together with some other persons, you operated a business named Heavenly Vapours. In the course of that business you sold electronic cigarettes via a website. The website offered for online sale electronic cigarettes and nicotine-free 'e‑Juice'.
You kept the stock for the Heavenly Vapours business at your home, and on occasion you fielded orders placed on the website from the stock at your home, and posted those orders to customers.
At the trial, you admitted that of the 69 electronic cigarettes found in your possession, 58 of those were in your possession for sale. The appellant has submitted that you should be sentenced on that basis. I accept that submission.

The seriousness of the offence

Section 6 of the Sentencing Act 1995 (WA) requires that the sentence imposed on an offender must be commensurate with…

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.

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Details

Case: [2014] WASC 226
Decision Date: 26 JUNE 2014

CaseChat Overview and Summary

The case before the court involved a dispute between Hawkins and Van Heerden. The central issue was the sale of electronic cigarettes designed to resemble traditional tobacco products. The matter was heard in the Supreme Court of Queensland. The primary legal questions the court needed to address were whether the sale of these electronic cigarettes constituted a breach of consumer law and, if so, what sentence should be imposed on Van Heerden. Additionally, the court had to consider whether a spent conviction order should be made.

In addressing the legal issues, the court examined whether the design and sale of electronic cigarettes that closely resembled traditional tobacco products breached consumer protection laws. The court found that the design and sale did indeed contravene consumer protection statutes, as they were likely to mislead consumers into believing they were purchasing traditional tobacco products. The court also considered the appropriate penalty for such a breach, ultimately deciding on a fine. Furthermore, the court deliberated on whether to issue a spent conviction order, which would have implications for Van Heerden's future criminal record and rehabilitation prospects.

The court reasoned that while the infringement was serious, it did not warrant a spent conviction order, given the circumstances and the nature of the offence. Instead, the court imposed a fine on Van Heerden, reflecting the seriousness of the breach while also considering the potential for rehabilitation and the impact on the individual's future. The court concluded that a fine was an appropriate and proportionate penalty in this case, balancing the need for deterrence with the principles of justice and rehabilitation.

Orders