Barlow v Rural City of Murray Bridge - [2018] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
BARLOW v RURAL CITY OF MURRAY BRIDGE
[2018] SASC 88
Judgment of The Honourable Justice Stanley
26 June 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - JUDGE MISTAKEN OR MISLED
MAGISTRATES - ORDERS AND CONVICTIONS - SENTENCE - FINES
Appeal against sentence and application for extension of time within which to appeal.
The appellant entered pleas of guilty in the Magistrates Court to three contraventions of the South Australian Public Health (Wastewater) Regulations 2013 (SA) (the Regulations). The magistrate entered convictions in respect of each contravention and imposed a single fine of $2,100.
The grounds of appeal are that the magistrate erred in imposing convictions for each contravention of the Regulations to which the appellant pleaded guilty and that the fine is manifestly excessive.
Held:
1. The magistrate declined to exercise the discretion not to record convictions on a mistake of fact. This is sufficient for the court to set aside the convictions and to exercise the discretion afresh.
2. The appeal is allowed to the extent that the convictions for two of the three contraventions are set aside.
3. The respondent is granted an extension of time within which to appeal.
South Australian Public Health (Wastewater) Regulations 2013 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 16, s 18, referred to.
Piva v Brinkworth (1992) 59 SASR 92; Gould v Austral Tree & Stump Services Pty Ltd & Anor (No. 2) [2008] SASC 149; Hili v The Queen (2010) 242 CLR 520; Wong v The Queen (2001) 207 CLR 584, applied.

BARLOW v RURAL CITY OF MURRAY BRIDGE
[2018] SASC 88
Magistrates Appeal
STANLEY J:
Introduction

This is an appeal against conviction and sentence.
The appellant carries on business as a builder and master plumber under the business name of Barlow Construction & Plumbing. The appellant was charged on information by the respondent with seven counts of contravening the South Australian Public Health (Wastewater) Regulations 2013 (SA) (the Regulations).
After negotiations, the appellant, who was represented by counsel, entered pleas of guilty in the Magistrates Court to three contraventions of the Regulations. The respondent withdrew four other charges. The matter proceeded on the basis of an informant’s statement of facts which had been agreed between counsel after negotiations.
The charges to which the appellant pleaded guilty were:
Count 1:Undertaking wastewater works and/or causing wastewater works to be undertaken other than in accordance with a wastewater works approval for works at Toora in the State of South Australia, contrary to Regulation 11(1)(b)(i) of the Regulations;
Count 2:Undertaking wastewater works and/or causing wastewater works to be undertaken other than in accordance with clause 4.6.7.3 of the Australia / New Zealand Standard 3500.2:2015 Plumbing and Drainage Part 2: Sanitary Plumbing and Drainage, at Toora in the State of South Australia, contrary to Regulation 11(1)(b)(ii) of the Regulations; and
Count 7:Undertaking wastewater works and/or causing wastewater works to be undertaken other than in accordance with clause 4.6.8.1 of the Australia / New Zealand Standard 3500.2:2015 Plumbing and Drainage Part 2: Sanitary Plumbing and Drainage, at Toora in the State of South Australia, contrary to Regulation 11(1)(b)(ii) of the Regulations.
Each charge carried a maximum penalty of a fine of $5,000.
The particulars of count 1 are that the appellant undertook wastewater works and/or caused wastewater works to be undertaken, namely, sanitary plumbing works at a property at Toora where the owners conduct a bed and breakfast business, when there was no wastewater approval for the works.
The particulars of count 2 are that the appellant installed or caused to be installed a floor waste gully for a bath at the Toora property that had a negative fall grade from the bath contrary to the requirement in clause 4.6.7.3 of the relevant standard which requires that each fixture connected to a floor waste gully shall be connected by a separate waste pipe at a grade not less than 2.5 per cent.
The particulars of count 7 are that a water seal of a floor waste gully in the laundry area of the Toora property was in a position that could not receive a waste discharge and was not installed by the appellant in a manner than maintained any means of replenishment. This was contrary to the requirement in clause 4.6.8.1 of the relevant Standard that the water seal of a floor waste gully located in a position that cannot receive a waste discharge shall be maintained by one of four listed means of replenishment.
The magistrate entered convictions in respect of each contravention and imposed a single fine of $2,100 pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) after allowing a 30 per cent discount for the pleas of guilty.
The appellant does not dispute that he is guilty of the offences.
On the hearing of the appeal, it became apparent that the grounds of appeal being pursued by the appellant, who was a litigant in person, are that the magistrate erred in imposing convictions for each contravention of the Regulations to which he pleaded guilty and that the fine is manifestly excessive.
The notice of appeal was filed on 2 May 2018. It is out of time. The limitation period expired on 12 April 2018[1] i.e. 21 days after the magistrate fixed sentence in the matter. The respondent opposes an extension of time.
[1] Supreme Court Civil Rules 2006 (SA) r 281(1).
Extension of time
On the hearing of the appeal the appellant sought an extension of time. He explained his failure to bring the proceedings within time on the basis that he had received conflicting advice as to the time within which he was to institute his appeal. He believed that he had 14 days from when he had received the magistrate’s sentencing remarks and he had difficulty obtaining the correct forms to institute the appeal. He said that it was his intention from the moment he learned of the sentence imposed to institute an appeal. The respondent does not submit that it is prejudiced by the failure to bring the proceedings within time. Essentially it submits that the appeal is without merit and accordingly an extension of time should not be granted. In the circumstances, I will leave consideration of the application to extend time until I have considered the merits of the appeal.
The magistrate’s reasons
The magistrate set out the circumstances of the offending and the appellant’s personal circumstances. He referred expressly to serious health problems suffered by the appellant at the time these offences occurred, which resulted in his hospitalisation for atrial fibrillation. As a result the appellant had engaged a subcontractor to perform part of the works. Those were the subject of count 7.
In addressing the submission that no conviction should be recorded the magistrate said:[2]
In support of the submission that no conviction should be recorded I was reminded that Mr Barlow has no prior convictions, has been operating his business without apparent problems for many years, that following negotiations he pleaded guilty to these charges and that the health issues that saw him unable to complete the work himself during this period of time have now largely been rectified which [sic] his health having improved, and those circumstances were unlikely to occur again. It was put that at the time he had simply taken on too much work when viewed against he [sic] precarious nature of his health and relied upon another to do that work.
It was put to me by prosecution that in fact the plumber engaged did not hold an appropriate licence at the time the work was done, but I accept the defendant believed that he did do so. Dealing with that submission, while I accept the defendant is otherwise of good character, that is only the starting point to the exercise of the discretion not to record a conviction.
In this instance, he assumed that there was an approval in place which is the offence contrary to count one, but clearly did not check whether that was the case. In respect of counts two and seven I accept his health had deteriorated and he was in hospital for a period and relied upon another person he believed was a licenced [sic] plumber but was not. Clearly he did not put in place a proper system to check that the work had been done properly. I do not regard either breach as minor and they clearly presented problems for the owners with offensive smells.
Given the clear public health issues behind the regulations and Code, general and personal deterrence are important issues and weighing all these factors together I have formed the view that convictions are appropriate in respect of all three offences.
[2] Rural City of Murray Bridge v Barlow MCMUB-17-1477 Remarks on Penalty of Magistrate Foley, 22 March 2018 at [15]-[18].
Principles relating to the imposition of penalty without conviction
The appellant fell to be sentenced in accordance with the provisions of s 16 of the Sentencing Act. The general approach to contraventions of regulatory offences found in social legislation is that convictions should be imposed because of the importance of considerations of deterrence. This principle was explained in Gould v Austral Tree & Stump Services Pty Ltd & Anor (No. 2)[3] by Vanstone J who said:[4]
[3] [2008] SASC 149.
[4] [2008] SASC 149 at [14]-[17].
Courts have been reluctant to exercise the discretion under s 16 in relation to regulatory offences, unless having regard to relevant factors, there are extenuating circumstances or good reasons not to record a conviction: Hemming v Lukin; Piva v Brinkworth; Hemming v Neave & Neave; Ly v Glover.
A person’s good character or record is only a pre-condition to the exercise of the discretion and not a make-weight: Piva v Brinkworth; Hemming v Neave & Neave. Particularly where the offence is committed knowingly, that is a strong consideration in favour of recording a conviction: Piva v Brinkworth at 96; Hemming v Neave & Neave. General and personal deterrence are also vital considerations, especially for blatant regulatory offences: Piva v Brinkworth at 96; Hemming v Neave & Neave at 429.
In Hemming v Lukin, the Chief Justice considered s 16 of the Sentencing Act in the context of an offence under the Fisheries Act 1982 (SA) of using pots, not marked with the respondent’s licence number, to take rock lobster. At the time of the infringement, the respondent’s boat and licence were being used by a registered master under an arrangement between them. By virtue of s 69(4) of the Fisheries Act the respondent (as well as the registered master) was guilty of an offence.
The respondent was a person of good character. The magistrate declined to record a conviction. The Chief Justice upheld the informant’s appeal and recorded a conviction. Doyle CJ said at 250:
To my mind, the sort of thing which would entitle a person such as the respondent to favourable treatment would be evidence of efforts made by the respondent, in a practical sense, to ensure that the licence user complied with the requirements of the law. In the present case, there is no suggestion at all that the respondent gave the user of the licence regular reminders of his obligations, or made any efforts to check the state of the pots or the state of the vessel when the vessel was in port.
[Citation omitted].
Nonetheless, the authorities recognise that there will be cases where the circumstances will invite the application of the power to proceed without conviction in dealing with regulatory or social legislation.[5] Those circumstances include where the court is of the opinion that the defendant is unlikely to commit the offence again or extenuating circumstances or other good reason exists for not recording a conviction.
[5] Piva v Brinkworth (1992) 59 SASR 92 at 96.
Consideration
In this case the exercise of the discretion by the magistrate miscarried. The magistrate declined to exercise the discretion on a mistake of fact. He treated the breaches in counts 2 and 7 as not being minor in nature because they caused the owners particular problems with offensive odours. The agreed facts before the magistrate did not go this far. The relevant fact was that the owners noticed a faint smell and suspected it related to the bath drain and the laundry floor waste gully.[6] As the appellant submits, there was no evidence that established conclusively that there was any factual basis to the owners’ suspicion. This is sufficient for the court to set aside the convictions and to exercise the discretion afresh.
[6] Informant’s Statement of Facts at [15].
Re-exercising the discretion
In this matter it is necessary for the court to consider whether it was appropriate to exercise the discretion conferred by s 16 in relation to each individual offence.
In relation to count 1, the appellant submits that his contravention of the regulation in undertaking the works without obtaining wastewater approval was the result of his reliance upon incorrect advice he had obtained from the respondent. On the hearing of the appeal, I admitted an affidavit of the appellant which deposed, inter alia, to a discussion he had with an officer of the respondent. The appellant said that he had been advised in a telephone conversation with an officer of the respondent that it was unnecessary that he submit an application for wastewater approval in circumstances where another plumber was undertaking works on the property at that time, and that he would be applying for such approval. On appeal, counsel for the respondent acknowledged that there was a record of contact between the appellant and one of its officers. There was no record of the nature of the discussion. In the circumstances, I accept the evidence of the appellant on this topic.
I accept that the contravention in count 1 was the result of the appellant’s understandable but regrettable reliance on advice he sought and obtained from the respondent, which proved to be incorrect. The appellant attempted to comply with his obligations in relation to obtaining the requisite approvals for performance of the works. The offending conduct was not the result of negligence or deliberate inadvertence. The contravention was not the result of any disregard by the appellant to comply with relevant regulatory obligations. The inadvertent failure to do so does not call for the imposition of a conviction for the reasons of personal deterrence. The need for personal deterrence will be satisfied in this case by the imposition of a fine. In any event, I am satisfied the appellant is unlikely to commit the offence again. Neither, in my view, do considerations of general deterrence require the imposition of a conviction. The imposition of a conviction is unnecessary to ensure that tradespeople performing works of this kind genuinely endeavour to comply with their regulatory obligations. In my view, this constitutes good reason for not recording a conviction.
In relation to count 7, the appellant submits that he was guilty of the offence because when the pipe was glued there was a negative fall of bath waste. However, he submits that when the pipe was in situ there was a positive fall. The appellant performed this work personally. Notwithstanding the appellant’s submission, it is clear there is no issue that he was guilty of the contravention charged. As this was work he performed personally, I do not consider there is good reason, or any other basis, to exercise the discretion not to record a conviction, given the rationale for the imposition of a conviction for offences of this kind.
In relation to count 3, the appellant pleaded guilty as the work was in breach of the regulations. However, the position in relation to this count can be distinguished from count 2. The work was undertaken by a subcontractor who was engaged by the appellant after the appellant fell seriously ill and was hospitalised, preventing him from undertaking the work. In these circumstances, he engaged a subcontractor, believing him to be a competent plumber with the requisite skills to undertake the works. As a result of the appellant’s illness, he was unable to supervise the performance of these works. He only became aware that there was a problem when he was served with the information in this matter. Again, in these circumstances, I consider there is good reason to exercise the discretion not to record a conviction. The contravention was not the result of any negligence or deliberate inadvertence on the part of the appellant towards his regulatory obligations. This is an appropriate occasion for the Court to extend some leniency.
Accordingly, I would allow the appeal to the extent of setting aside the convictions in relation to counts 1 and 7.
The fine
The appellant submits that, in these circumstances, the fine imposed is manifestly excessive. In R v Morse,[7] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. They are the maximum sentences prescribed by law, the standards of sentencing currently observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender. The relevant principles are explained by the High Court in Hili v The Queen,[8] where French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said that manifest excess in sentencing is a conclusion. They explained, citing Wong v The Queen,[9] that:[10]
...[a]ppellate intervention on the ground that sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.
[Footnote omitted.]
[7] (1979) 23 SASR 98 at 99.
[8] [2010] HCA 45, (2010) 242 CLR 520.
[9] [2001] HCA 64, (2001) 207 CLR 584.
[10] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538-539.
The starting point for consideration of this submission is recognition that the appellant is guilty of all three offences, notwithstanding that I would not impose a conviction in relation to two of them. The maximum penalty that could be imposed[11] is a fine of $15,000. The appellant was entitled to credit for his previous good character. He was entitled to a 30 per cent discount for his pleas of guilty. The magistrate had regard to these matters. I do not consider that, in fixing the fine, the magistrate had regard to the factual error which vitiated the exercise of his discretion to impose a conviction. There is no process error demonstrated.
[11] Pursuant to s 18A of the Sentencing Act.
In my view, the fine imposed is within the range of penalties that could be imposed, having regard to the circumstances of the offending and the appellant’s personal circumstances. There is no outcome error.
I would dismiss the ground of appeal that the fine imposed was manifestly excessive.
Conclusion

In the circumstances, given I would allow the appeal in order to set aside two of the convictions, I am prepared to grant an extension of time to 2 May 2018 within which to institute the appeal.
I would allow the appeal and set aside the convictions recorded in relation to counts 1 and 7. I would not interfere with the conviction in relation to count 2 and the fine of $2,100.