Austrend Construction Pty Ltd v City of Swan - [2017] WASC 67

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: AUSTREND CONSTRUCTION PTY LTD -v- CITY OF SWAN [2017] WASC 67

CORAM: MCGRATH J

HEARD: 30 JANUARY 2017

DELIVERED : 16 MARCH 2017

FILE NO/S: SJA 1080 of 2016

BETWEEN: AUSTREND CONSTRUCTION PTY LTD
Appellant
AND
CITY OF SWAN
Respondent

ON APPEAL FROM:
For File No              :  SJA 1080 of 2016
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G A BENN
File No  :MI 4035 of 2016

Catchwords:

Criminal law and procedure - Appeals to single judge against sentence by a magistrate - Fine for breach of planning scheme - Sentence manifestly excessive - Leave to appeal granted - Appeal allowed - Resentence

Legislation:

Criminal Appeals Act 2004 (WA)
Local Government Act 1995 (WA), s 2.1
Planning and Development Act 2005 (WA), s 218, s 223
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr H H Jackson
Respondent: Mr T L Beckett

Solicitors:

Appellant: Hotchkin Hanly Lawyers
Respondent: McLeods Barristers & Solicitors

Case(s) referred to in judgment(s):

Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87
Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431
Allmark v City of Stirling [2013] WASCA 122
Basso-Brusa v City of Wanneroo [2003] WASCA 103
Beydoun v City of Stirling [2015] WASC 25
Callan v City of Fremantle [2008] WASC 197
Caruso v Shire of Augusta-Margaret River [2016] WASC 379
Chan v The Queen (1989) 38 A Crim R 337
Chen v City of Stirling [2014] WASC 183
Chong v The City of Mandurah [2013] WASC 470
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37; (2010) 199 A Crim R 83
Ehsan v City of Armadale [2010] WASC 369
G T Homes Pty Ltd v Shire of York [2010] WASC 312
Goddard v City of Stirling [2009] WASC 28
JKL v The State of Western Australia [2012] WASCA 215
Lowndes v The Queen (1999) 195 CLR 665
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Paolucci v Town of Cambridge [2013] WASC 50
Pavlinovich Bulk Transport Pty Ltd v Shire Of Kalamunda [2011] WASC 234
Peat Resources of Australia Pty Ltd v City of Cockburn [2002] WASCA 342
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Steelmakers Pty Ltd v City of Swan [2014] WASC 449
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81
Taylor v City of Kwinana [2015] WASC 252
Teissier v City of Rockingham [2014] WASC 158
Uxcel Pty Ltd v City of Bayswater [2013] WASC 5
Van Lieshout v City of Fremantle [No 2] [2013] WASC 176
MCGRATH J:

Introduction

The appellant seeks leave to appeal against a fine imposed for one offence contrary to s 218 of the Planning and Development Act 2005 (WA) (the PD Act). The respondent has conceded the appeal for the reason that the fine imposed was manifestly excessive. I agree that the concession by the respondent was properly made. Accordingly, I have allowed the appeal and resentenced the appellant. My reasons for allowing the appeal and imposing a different sentence are as follows.

Magistrates Court proceedings

The appellant was charged with carrying out development, which was required to comply with the City of Swan Local Planning Scheme No. 17, otherwise than in accordance with the condition imposed under the Scheme with respect to development contrary to s 218 of the PD Act.
The appellant's property is within the City of Swan which is a district declared pursuant to s 2.1 of the Local Government Act 1995 (WA). Any development in this district is subject to the City of Swan Local Planning Scheme No. 17.
On Monday, 19 September 2016 the appellant appeared in the Magistrates Court and entered a plea of guilty. This was the first reasonable opportunity to do so. The facts that were read to the presiding magistrate are as follows:[1]
[1] ts 3 ‑ 4.
The accused company is the owner of the property at 8 Trade Street, Malaga. The company operates a business known as Austrend Marble and Granite at the property which supplies high quality stone, granite and marble benchtops for residential homes. The land is zoned general industry under the city's local planning scheme number 17. And there is an existing factory building on the property which was approved by the city in 1996.
In 2008, a further planning approval was issued by the city to construct a mezzanine floor inside the existing factory building. That approval was subject to a number of conditions, including condition 2 which provided that:
No products, materials or other goods whatsoever are to be stored outside of the building unless in a designated area approved by the city for that purpose.
In 2015, the city received a complaint in relation to operations at the property. Inspection of the property by officers of the city in March and April 2015 revealed the car parking area on the eastern side of the factory building was being used to store large sheets of stone, granite and marble used for the construction of the bench tops.
The materials were stored over nine marked car parking bays on the eastern side of the property and within the access way adjacent to those car parking bays. Following inspection of the property in June 2015 which revealed the car park and access way were continuing to be used to store materials associated with the business, the city wrote to the accused company on 11 June 2015 advising the company of the conditions of the 2008 planning approval, including condition 2, and advising of the penalties for failing to comply with those conditions.
The company was requested by the city to comply with the conditions for the planning approval within 30 days of the date of the letter. Subsequent inspection of the property by an officer of the city in November 2015 revealed no change in the state of the property. Large amounts of stone and marble continued to be stored in the parking bays and access areas on the eastern side of the factory building.
On 7 December 2015, the city wrote to the company again confirming the conditions of approval and advising that if the company did not comply with the condition of the planning approval within 30 days of that date of that letter, the city would commence legal proceedings against the company. Subsequent inspection of the company by officers of the city in late January 2016 and, again, on 22 March 2016, revealed no change in the state of the property. And, your Honour, I will just hand up some photographs now - there's a copy there for my friend - showing the state of the property at various dates between March 2015 and January 2016.
…
As shown in the photographs, there's a large quantity of materials covering a significant proportion of that car park. When asked what action was being taken to comply with condition 2 of the planning approval, a director of the company, Mr Wang Chen Xao, said the company was planning to move some of the materials from the car park to a property across the road. Subsequent inspection of the property by officers of the city on 5 April 2016 revealed that the accused had commenced moving some of the materials to the property across the road.
However, the situation remained largely unchanged at that stage with the majority of the car parking bays and the access way continuing to be used to store stone for the company's business. And as a result of the failure to significantly improve the property, this prosecution as commenced. Since that time, further improvement has been carried out at the property and the materials have largely been removed.
But the prosecution position is that that change did not occur until after this prosecution was commenced. And, arguably, wouldn't have occurred but for these proceedings having been commenced.
In mitigation the appellant filed an affidavit from Mr Wansheng Zhao, director of Austrend Construction Pty Ltd.[2] Mr Zhao stated that he was absent from Perth during the period December 2015 to February 2016 and accordingly, did not have time to arrange removal of the stock. Further, Mr Zhao stated that he had to attend hospital for medical treatment due to personal injuries that he suffered from a motor vehicle accident.
[2] Affidavit of Wansheng Zhao sworn 12 August 2016.
In mitigation, it was also stated that a lease for new premises had been executed on 15 February 2016 and that the lease commenced on 1 March 2016. Prior to receiving the prosecution notice all the stock had been removed to a warehouse at Unit 1/5 Mulgul Road, Malaga, WA. Mr Zhao outlined the financial imposition on the appellant in meeting the lawful obligation to comply with the condition.[3] Further, it was also submitted that there was difficulty in securing a suitable premises to store the material.[4]
[3] Affidavit of Wansheng Zhao sworn 12 August 2016.
[4] ts 10 ‑ 11.
The prosecutor at sentencing submitted that the offending was deliberate and a continuing breach of the PD Act.[5] The prosecutor placed emphasis on the fact that notice was given to the appellant and that the breach was not rectified. The prosecutor's submission was that there was a commercial element to the offending because the appellant was storing material for his business at the premises in breach of the condition.[6] Accordingly, there was the need for a significant deterrent penalty.[7]
[5] ts 6.
[6] ts 6.
[7] ts 5.
His Honour then made sentencing remarks as follows:[8]
[8] ts 12 ‑ 14.
Yes. All right. In respect to this matter, I note the sentencing principles that have been referred to by the prosecution and the important need from the point of view of the community for planning schemes to be strictly adhered to and the need for there to be penalty in cases such as this that act as a personal deterrent, not so much here, I suppose, at the end of the day, given that the problem, although slowly, is now being addressed. But certainly the need for a general deterrent and the need for a penalty that doesn't just fall within the realms of an acceptable operating expense so that it can be written off as, as the prosecution has described, an unfortunate but within acceptable limits an expense in terms of running the business.
In this case, in terms of history, it seems the property was taken on without there having been full and careful considerations as to the planning restrictions because it seems that this was likely to have been a problem right from the commencement of the business in respect to the need to store heavy blocks of marble and granite within close proximity to the factory to enable the stone to be quickly accessed on a daily basis in regard to the demands of the business and orders.
As a result, it seems, of there being no significant area for storage of the raw blocks, it was stored within car parking bays and access areas within the business premises. I note that no other business was directly impacted upon in terms of those parking spots - they were the parking spots of the business Austrend - and the access areas as well. However, that resulted in still two kinds of impact to businesses and the community generally within the vicinity and that was visitors to the area and other people who would normally use those parking bays, presumably workers in the business, had to park on the surrounding road verge and that is certainly an impact on the community generally. Also, there was the visual impact created in respect to the storage of these blocks in a fairly unsightly way, clearly visible to the surrounding areas.
I note that the first inspection took place in June 2015 to identify this problem and there was a letter in June last year, advising of the penalty and requesting compliance in 30 days. An inspection then, some months later in November, revealed no change. That continued until December, when the company was advised that they had 30 days or there would be a prosecution. No change, late January, March and then it seems that there was a plan to start moving some material in April. Some material had commenced move and there was some improvement and since then, it seems, a more substantial improvement in the material now having been largely removed. I note that this prosecution was commenced - when was it?
The prosecution notice was issued on 5 April 2016.
So there was a fairly lengthy period of warnings before the prosecution was commenced, and I appreciate, that there were delays involved that, at least in part, were attributable to trying to locate premises that were available and near enough to serve the purpose of storing the material and, in addition to that, delays in getting the vehicle necessary to be able to effectively move the material, and I appreciate that suitable premises would not necessarily have been available immediately and that it would have taken time to organise the necessary machinery involved and the vehicles to be able to move the material and move it backwards and forwards, but at the end of the day, really, it seems we are talking about, as would be expected, commercial costs balanced against the viability of continuing with the business.
And while it was probably the case that other premises could have been located that weren't perhaps near enough and the machinery hired, that would have all, of course, added to the cost of running the business, and so the company elected to wait until it was able to secure purchase of the necessary machinery and a premises that was near enough to do the move. So in part, there was a commercial decision there. In part, it was waiting for the right premises and the machinery to be available.
So I'm not of the view that it was entirely a blatant disregard. The issues involving health and travel overseas really doesn't feature in mitigation in any way. It's really a matter of weighing up the nature of the breach, the impact of the breach and the length of time the breach existed for, and the reasons for the delay, and then considering the appropriate sentencing principles once those matters are all weighed up.
At the end of the day, I'm going to deal with the matter by way of a fine. I'm not going to impose a daily penalty, but the fine is intended to take into account the very sentencing principles that have been made clear by the Supreme Court in regard to the public interest involved in such prosecutions, the need to adhere to planning schemes and restrictions, and the need for a penalty to act as a general deterrent and to be significant enough not to just be written off as an acceptable (indistinct).
I will take into account the plea of guilty and certainly apply a discount in regard to that plea. And in regard to penalty, it will be a fine of $250,000 and costs of $2085.60.

Appeal

This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[9] An appeal may be made on the grounds that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[10]
[9] Criminal Appeals Act 2004 (WA) s 9(1).
[10] Criminal Appeals Act 2004 (WA) s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[11] The court may dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed.[12]
[11] Criminal Appeals Act 2004 (WA) s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487 [56] (Steytler P, Wheeler and Roberts-Smith JJA).
[12] Criminal Appeals Act 2004 (WA) s 14.
The notice of appeal raises one ground being:
1.The learned Magistrate erred in law in imposing a sentence which was manifestly excessive.
Particulars
The sentence imposed was not commensurate with the seriousness of the offence and the mitigating factors when regard is had to the fact that:
a.the appellant's non-compliance with the relevant condition imposed under the Scheme was inadvertent, rather than a blatant disregard of the condition;
b.the appellant's non-compliance with the relevant condition imposed under the Scheme fell within the less serious category of offences, given that it was temporary in nature and did not adversely affect the amenity of the locality, the environment, or the health and comfort of others;
c.the appellant had moved the offending materials before the prosecution notice was issued, demonstrating an intention to comply with the relevant condition imposed under the Scheme;
d.if any commercial benefit was gained by the appellant due to the appellant's non-compliance with the relevant condition imposed under the Scheme it was minor;
e.the appellant had no previous convictions;
f.the appellant pleaded guilty to the offence at the earliest opportunity; and
g.the appellant's means to pay the fine imposed and the extent to which the fine will burden the appellant.
The ground contends that the sentence imposed in respect to the offence was manifestly excessive. The ground therefore asserts implied error. That is, in all the circumstances, including those personal to the appellant, the sentence imposed was not one open in the exercise of a sound sentencing discretion. It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[13] It is not enough in respect to a sentencing appeal to contend that the appellate court might have exercised its discretion in a different manner. There must be error.[14]
[13] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).
[14] Lowndes v The Queen (1999) 195 CLR 665.
A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[15]
[15] Sentencing Act 1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.

Maximum sentence

Section 223 of the PD Act provides that a person who commits an offence under the Act is liable to a fine of $200,000 and, in the case of a continuing offence, a further fine of $25,000 for each day during which the offence occurs.
In 2011, the maximum penalty under s 223 of the PD Act for individuals was increased from $50,000 to $200,000 and the daily penalty increased from $5,000 to $25,000.[16] An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased.[17]
[16] See Heritage and Planning Legislation Amendment Act2011 (WA).
[17] JKL v The State of Western Australia [2012] WASCA 215 [98] (Murphy JA).
For corporate offenders the maximum penalty for the offence is $1 million.[18] Further, for corporate offenders the maximum daily penalty is $125,000 per day during the prosecution period. For the appellant, there were 340 days in the prosecution period to which a daily penalty could apply. However, counsel for the appellant noted that for part of that period between 5 April 2016 and 11 June 2016 the appellant had not been given notice concerning the existence of the condition and that it was being breached.
[18] Planning and Development Act 2005 (WA) s 223; Sentencing Act1995 (WA) s 40(5).

Nature and seriousness of offending

The approach to the enforcement of planning controls and their purpose was stated by Hasluck J in Swan Bay Holdings Pty Ltd v City of Cockburn as follows:[19]
Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also upon a pervasive culture of general observance and respect for the underlying communal purpose. This requires that breaches of the law be underpinned by significant penalties in order to deter infringements.
[19] Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 [74] (Hasluck J).

It has been recognised that a primary importance in sentencing for this type of offending is the need to impose penalties upon the corporate offender that deters the particular offender from future breaches and to also operate as a general deterrent for others.[20] In this regard, the observation of Murray J in Able Lott Holdings Pty Ltd v City of Fremantle is apposite that 'penalties should be commensurate with the seriousness of the breaches and should not be of an order which, in the judgment of the court, the appellant might regard as an unfortunate, but acceptable, operating expense'.[21]
[20] Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87 [48].
[21] Able Lott Holdings Pty Ltd v City of Fremantle [48].
As noted above, in the Notice of Appeal the appellant has particularised the factors that are relied upon as supporting the appellant's characterisation of the offending as towards the lower end of seriousness.[22] They are the mitigating factors relied upon by the appellant in the appeal. During the appeal hearing the appellant's counsel identified, in particular, the issues of inadvertence, whether there was any commerciality in committing the breach, the scale and impact and the permanency of the breach.[23] I will consider each of the mitigating factors particularised below.
[22] See pages 8 ‑ 9 above.
[23] ts (appeal hearing) 7.

Inadvertent nature of breach

The appellant contends that the breach was inadvertent. This may be contrasted to offending that is characterised as premeditated and blatant which is an aggravating factor.[24] It is important, when imposing a sentence for a planning offence, to determine whether the offence was committed inadvertently or with some credible explanation or in contrast, with brazen disregard of the planning requirements.[25]
[24] Paolucci v Town of Cambridge [2013] WASC 50 (Edelman J).
[25] Uxcel Pty Ltd v City of Bayswater [2013] WASC 5 [32] (Heenan J).
It is accepted by the respondent that the offence was committed inadvertently given that the appellant was not aware of the 2008 Planning Approval and in particular, the relevant conditions, until the respondent specifically raised the requirement with the appellant in June 2015.[26] However, the factual circumstances of the offending in this case require close scrutiny. The appellant initially breached the condition through inadvertence. Subsequent to receiving notice of the breach the appellant did not comply. There was an extended period of non‑compliance that ceased after 340 days. During that period the appellant ignored the continual warnings from the respondent. The appellant chose to continue the breach, largely for commercial reasons.
[26] ts 7, 8; Respondent's Written Outline of Submissions [14](a).
The appellant did make some effort to rectify the breach. On 15 February 2016, the appellant executed a lease for premises, to store the material. On 1 March 2016, the lease commenced. The appellant commenced moving the material on 11 March 2016. At the appeal hearing counsel for the appellant submitted that at the time of the commencement of the prosecution a considerable amount of work to move the material had taken place.[27] The facts upon which the appellant pleaded and which were accepted for the purposes of that plea stated that the situation at the premises on 5 April 2016 remained largely unchanged. Ultimately, the fact that is accepted by the parties is that the appellant had entered the lease for the premises and had commenced moving the material prior to the commencement of the prosecution. Certainly, at the time of sentencing the breach had been rectified.[28]
[27] ts (appeal hearing) 5.
[28] ts (appeal hearing) 6.

Reversible breach – distinction between use and development

The appellant submits that the breach involved an act that was 'easily reversible' given that it did not involve construction on, or permanent alteration to, the property. That is accepted by the respondent. The appellant was storing the material in nine car parking bays. Having now removed the material the breach has been fully rectified. The distinction between construction development cases and breaches involving unapproved use of land is a factor that should be considered for determining sentence for a breach. Though, as observed by Fiannaca J in Caruso v Shire of Augusta-Margaret River[29] breaches involving construction will not always be more serious than those involving the use of land. Rather, it will depend upon the circumstances of the respective case. A land use case may be characterised by a danger to the health and safety of the community.
[29] Caruso v Shire of Augusta-Margaret River [2016] WASC 379 [134] ‑ [135].
Clearly, the appellant's use of the nine car parking bays had only visual impact and displaced the parking from nine car bays and was completely reversible. In contrast, the more serious cases involve development that is not reversible and has significant long lasting impact.

Scale of breach – temporary and impact on breach

The appellant correctly observed that planning offences can vary significantly in their circumstances from, for example, minor unapproved works made to a residence by an owner builder to significant works at a major commercial development.[30] The appellant characterises the scale of the unapproved use undertaken, without approval, as minor in comparison with major commercial development and also temporary. The respondent accepts that those factors existed but maintains the offending cannot be described at the lower end of the scale.
[30] Uxcel Pty Ltd v City of Bayswater [33].
The appellant submits that the offending did have a visual impact but did not affect the enjoyment of the area nor did it result in any safety or environmental issues. The magistrate, though, made unimpeachable findings that there were two kinds of impact to the community and specifically the local businesses. His Honour found that there was the visual impact in respect to the storage of the blocks in a 'fairly unsightly way, clearly visible to the surrounding areas'.[31] At sentencing before the magistrate photographs were produced. I have considered the photographs. His Honour's description was without error. Further, the magistrate found that the use of the parking bays to store material resulted in employees parking on the surrounding road verge.[32]
[31] ts 13.
[32] ts 13.
The respondent in written submissions referred to a possible traffic visibility hazard.[33] That submission was disavowed by counsel at the appeal hearing.[34] Rather, the only consequence was that the persons, who otherwise would have parked within the appellant's nine parking bays, had to park on the street verge.
[33] Respondent's Written Outline of Submissions [14](b).
[34] ts (appeal hearing) 29.

Extent of commercial benefit

The appellant contends that any commercial benefit gained by the appellant due to the appellant's non‑compliance with the relevant condition was minor.[35] The respondent submits that there may have been a significant commercial benefit derived from the non‑compliance. The respondent observes that the storage of materials in the car park area enabled the appellant to avoid the cost of leasing other premises between April 2015 and March 2016. Further, there was a benefit of keeping the materials in close proximity to the factory site.
[35] Appellant's Written Outline of Submissions [11](d).
After accepting that suitable premises would not necessarily have been available immediately, and that it would have taken time to organise the machinery, the magistrate found that 'at the end of the day we are talking about, as would be expected, commercial costs balanced against the viability of continuing with the business'.[36] His Honour found that the appellant had elected to wait until it was able to secure the purchase of the machinery and premises that was close enough to move.[37] The affidavit of Mr Zhao outlines the financial cost of complying. Mr Zhao deposed that 'it costs money and time to get the stocks removed'.[38] That cost was itemised as being forklift cost ($41,124.96); truck ($57,000.00); additional labour ($18,216.00).[39] There was a commercial benefit to the appellant in not complying immediately. Though, the commercial benefit in this case was not one where there was significant permanent building which resulted in significant financial gain. Rather, a small business has chosen to store stock in a carpark to limit costs.
[36] ts 14.
[37] ts 14.
[38] Affidavit of Wansheng Zhao sworn 12 August 2016 [5].
[39] Affidavit of Wansheng Zhao sworn 12 August 2016 [5].
During the appeal hearing counsel for the appellant submitted that this was not a case of commercial benefit. One aspect of that submission was that the decision to store the material was made without any knowledge of the condition. That was accepted by the respondent. The further submission was that the appellant was endeavouring to rectify the breach and that the continuation of the breach was not motivated by 'gaming the system', rather the appellant was trying to find alternate premises. Counsel for the appellant contended that a business can continue to trade, whilst in breach of the PD Act, without necessarily committing a commercially motivated breach.
The magistrate found that there were reasons for the delay in not immediately rectifying the breach being the need to locate premises that were within close proximity and the need to organise the machinery and vehicles to transport the material.[40] However, after accepting those factors the magistrate found that it was to do with commercial costs balanced against the viability of continuing the business.[41] The magistrate concluded that it was not a blatant disregard but 'in part, there was a commercial decision there'.[42]
[40] ts 14.
[41] ts 14.
[42] ts 14.
The magistrate's finding is unimpeachable. I accept that the breach was inadvertent but its continuation, was, commercially motivated. I accept that the appellant did commence addressing the issue but that there were ongoing logistical challenges in finding suitable premises and moving the stock. The appellant continued to trade. The storage of the material was necessary for the appellant to trade. The lease for the new premises has an annual rent of $20,000 which is indicative of the cost for lawfully storing the material for the appellant.[43]
[43] Exhibit 1, Lease Austrend Construction Pty Ltd.

Mitigating factors - personal circumstances

The appellant has no previous conviction under the PD Act. Further, the appellant pleaded guilty at the first reasonable opportunity. This is a significant mitigating factor.
The appellant has pleaded a particular of the appeal ground that refers to the appellant's means to pay the fine imposed and the extent to which the fine will burden the appellant.[44] Section 53 of the Sentencing Act 1995 (WA) provides that subject to the provisions concerning principles of sentencing, aggravating factors and mitigating factors, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as practicable, take into account (a) the means of the offender; and (b) the extent to which payment of the fine will burden the offender.
[44] Notice of Appeal 1(g).
The appellant relies upon its 2015 Company tax return which discloses an income of approximately $1.32 million with an operating profit of $57,984 for that financial year.[45] The appellant has the capacity to pay a fine. However, I accept the appellant's submission that the fine of $250,000 represents a significant imposition on the appellant.[46]
[45] Exhibit 2, Company Tax Return 2015 for Austrend Construction Pty Ltd.
[46] ts (appeal hearing) 26.
There are two other aspects of the personal circumstances of the appellant. The appellant has two directors and only Mr Zhao speaks English.[47] I accept that this factor impacted on the ability of the appellant to promptly rectify the breach. Before the magistrate the appellant relied upon the fact that Mr Zhao was absent overseas between December 2015 and February 2016 as a further factor in mitigation. The magistrate did not consider this a relevant factor in mitigation.[48] Mr Zhao also relied upon health issues arising from a motor vehicle accident that occurred on 2 April 2012.[49] During the sentencing hearing counsel for the appellant confirmed that Mr Zhao's last period of hospitalisation was in 2014.[50] Though, there are frequent visits to specialists ongoing. The magistrate observed that he was unable to understand how that fact explained the appellant's delay in complying.[51] Understandably, his Honour found that the health issue was not a relevant factor in mitigation.[52] The appellant does not impeach that finding. That is understandable. I agree that the health issue was not a mitigating factor.
[47] ts (appeal hearing) 11.
[48] ts 14.
[49] ts 9.
[50] ts 9.
[51] ts 9.
[52] ts 14.

Range of sentences imposed

There is no established range of sentences for this type of offending. Endeavouring to find a clear pattern of the range of penalties is impeded by the different circumstances in which this type of offence may occur. This includes the period over which the offending may occur, the increased penalties resulting from the increased maximum penalty and daily penalties and whether the offender is an individual or corporate.[53] Moreover, as I noted above, the maximum penalty has increased. That must be borne in mind when considering the authorities prior to the commencement of the increased maximum penalty.
[53] Caruso v Shire of Augusta-Margaret River [126]; Beydoun v City of Stirling [2015] WASC 25 [156] (Pritchard J).
In any event, the range of sentence that is customarily imposed does not establish the range of a sound sentencing discretion. Sentencing ranges can provide only general guidance. Cases may assist in identifying the range of a sound sentencing discretion but it is always necessary that the sentence imposed be one that is just in respect of the circumstances of the particular case. However, I am also mindful that consistency in sentences is an important principle in sentencing.
A detailed review of cases was undertaken by Pritchard J in Beydoun v City of Stirling[54] and by Fiannaca J in Caruso v Shire of Augusta‑Margaret River[55]. I have considered the cases outlined in Beydoun v City of Stirling and Caruso v Shire of Augusta‑Margaret River.
[54] Beydoun v City of Stirling [157] – [180].
[55] Caruso v Shire of Augusta-Margaret River [126] – [180].
The appellant also provided a table outlining a number of cases for the purpose of considering the range of sentences that have been imposed on individuals and corporate bodies.[56] The appellant recognised that it was not possible to discern a range of sentences given the vastly different circumstances in which the offences can occur. The table served to illustrate that fact. I have considered the cases to which the appellant referred.
[56] Steelmakers Pty Ltd v City of Swan [2014] WASC 449; Chen v City of Stirling [2014] WASC 183; Teissier v City of Rockingham [2014] WASC 158; Chong v The City of Mandurah [2013] WASC 470; Allmark v City of Stirling [2013] WASCA 122; Van Lieshout v City of Fremantle [No 2] [2013] WASC 176; Paolucci v Town of Cambridge; Uxcel Pty Ltd v City of Bayswater; Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 [39]; Able Lott Holdings Pty Ltd v City of Fremantle; Pavlinovich Bulk Transport Pty Ltd v Shire Of Kalamunda [2011] WASC 234; Able Lott Holdings Pty Ltd v City of Fremantle [2011]; Ehsan v City of Armadale [2010] WASC 369; G T Homes Pty Ltd v Shire of York [2010] WASC 312; Swan Bay Holdings Pty Ltd v City of Cockburn; Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37; (2010) 199 A Crim R 83; Goddard v City of Stirling [2009] WASC 28; Callan v City of Fremantle [2008] WASC 197; Peat Resources of Australia Pty Ltd v City of Cockburn [2002] WASCA 342.
Turning to the authorities, I consider that the cases that involve storage or use of land in breach of conditions are most informative. The cases that involve significant serious offending are supportive of the appellant's ground of appeal in that they illustrate the manifest excessive nature of the fine.
A storage type case in respect to individuals is Callan v City of Fremantle where the appellants used a shed on their property to store building materials which were not being used at the residence. There was no approval for the storage of the building material. Upon being convicted of a breach of the PD Act a fine of $18,000 was imposed on both offenders. On appeal the fines were reduced to $4,000 on each appellant. This case involved individuals and involved a breach that may be described as at the very lower end of this type of offending.
Turning to corporate offenders, in Dodd and Dodd Pty Ltd v Shire of Mundaring the offender, operating a substantial commercial business, used land as a salvage/wrecker's yard. The appellant had two previous convictions for offences of an identical nature. The second of the convictions occurred in circumstances where the Shire permitted the appellant 12 months to move the business without prosecution. The appellant did not do so. Rather, the appellant continued to conduct the business. Further, the appellant was found to have advanced an untenable defence for the purpose of delaying conviction. An appeal was against a fine of $120,000 with a daily penalty of $100 per day for 288 days (a total fine of $148,800) was dismissed.
The case of Dodd and Dodd Pty Ltd v Shire of Mundaring involves much more serious offending than the present case. The antecedents of the offender were poor and the breach was serious.
In Peat Resources of Australia Pty Ltd v City of Cockburn the offender was convicted for using land without planning consent for the stockpiling and storage of soil. The offender, whilst entering a plea of guilty, had three prior convictions for breaching the planning laws. The appeal determined that the magistrate's sentence of $50,000 and a daily penalty of $200 per day for 362 days (a total fine of $122,400) was not manifestly excessive. This case involved much more serious offending and the offender had prior convictions.
In Basso‑Brusa v City of Wanneroo[57] the appellants had been granted approval to use a site for storage of timber and logs but used the location for chainsaw operations as a continuing method of operation rather than isolated instances. The three individuals were each fined $10,000 whilst the corporate offender was fined $20,000. The offender had two previous convictions. An appeal against the quantum of those fines was dismissed. This case involved offending at the lower end and the fine was imposed prior to the increase in penalties.
[57] Basso-Brusa v City of Wanneroo [2003] WASCA 103.
In Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda, the offender breached the PD Act by using land for parking commercial vehicles without approval. The company had shown no remorse for a breach that was characterised as a 'large‑scale operation…conducted with a flagrant disregard' and with no remorse.[58] An appeal against a fine of $100,000 plus daily penalties (total fine being $116,900) was dismissed.
[58] Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [61].
In Taylor v City of Kwinana[59] the offender breached planning laws by clearing and levelling property and using property to store heavy machinery without the required planning approval. The period of the breach was five months. The offender was given notice to cease but ignored the requests for 12 to 15 months. The offender pleaded guilty and was fined $30,000 with a daily penalty at $50 per day (total fine being $38,100). The appeal was dismissed. There are similarities with the present case being that the plea of guilty after not ceasing was due, in part, to commercial reasons. The offending involved, in part, storage which could be rectified.
[59] Taylor v City of Kwinana [2015] WASC 252.

The appellant relied, in particular, on Steelmakers Pty Ltd v City of Swan. In Steelmakers Kenneth Martin J found that the appellant was breach by in failing to undertake carpark area repairs, including kerbing and upgrading, in a timely manner. His Honour imposed a $32,700 fine which comprised a fine of $15,000 and the balance comprising a daily fine of $100 for each of the 177 days in breach.[60] During the appeal hearing the respondent's counsel accepted that Steelmakers is a case with some obvious similarities.[61] A point of dissimilarity noted by the respondent was that the period of non‑compliance was six months compared to the appellant's 11 month period of non‑compliance.
[60] Steelmakers Pty Ltd v City of Swan [152] ‑ [153].
[61] ts (appeal hearing) 36.

Manifestly excessive and resentencing the appellant

The appellant's offending may be characterised as an inadvertent breach which, was not rectified for at least nine months after receiving notification from the respondent of that breach. A factor which tends toward a higher penalty is that the offending continued for 340 days and that the decision to continue that offending was made in circumstances where the appellant had full knowledge of the breach and had received multiple warnings from the respondent. I accept that there was a commercial element to the offending. I have outlined the nature of that commercial element above.
On the other hand, there are a number of factors which weigh against a higher penalty. It is common ground that the appellant breached the condition without any knowledge of the condition. This is not a case where an offender deliberately decides on a course of conduct with knowledge that the action is contrary to law but does so for financial reasons.
The breach was not permanent and largely may be described as the storing of stock material for the business impermissibly on the property. The breach was able to be rectified promptly upon storage premises being leased.
The offending had some, but not great, impact on other persons. That impact, as noted above, was limited to a visual impact and employees of the appellant parking on the road due to the unavailability of the parking bays.
The appellant has no prior relevant convictions and pleaded guilty at the first reasonable opportunity. Finally, upon being prosecuted the appellant had commenced rectifying the breach and had done so by the time of sentencing. I accept that the appellant did take action to rectify the breach but that there were logistical challenges in not complying immediately. Of course, underlying the logistical challenges is that the business needed to continue to trade and to do so the nine parking bays were used in breach of the condition.
In taking all the relevant circumstances into account I have determined that leave to appeal should be granted, the appeal allowed and that the fine of $250,000 should be set aside and in lieu thereof a fine in the amount of $40,000 should be imposed.