Beydoun v City of Stirling
[2015] WASC 25
•27 JANUARY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BEYDOUN -v- CITY OF STIRLING [2015] WASC 25
CORAM: PRITCHARD J
HEARD: 19 MARCH 2014
DELIVERED : 27 JANUARY 2015
FILE NO/S: SJA 1099 of 2013
BETWEEN: GHASSAN BEYDOUN (also known as JOHN BEYDOUN)
Appellant
AND
CITY OF STIRLING
Respondent
FILE NO/S :SJA 1100 of 2013
BETWEEN :KAMAR DAOUD AKKACH
Appellant
AND
CITY OF STIRLING
Respondent
FILE NO/S :SJA 1103 of 2013
BETWEEN :PEARL ASSET PTY LTD
Appellant
AND
CITY OF STIRLING
Respondent
ON APPEAL FROM:
For File No : SJA 1099 of 2013
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE C P CRAWFORD
Citation :CITY OF STIRLING -v- GHASSAN (JOHN) BEYDOUN; KAMAR DAOUD AKKACH AND PEARL ASSET PTY LTD
File No :PE 34318 of 2010, PE 34319 of 2010, PE 34320 of 2010
For File No : SJA 1100 of 2013
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE C P CRAWFORD
Citation :CITY OF STIRLING -v- GHASSAN (JOHN) BEYDOUN; KAMAR DAOUD AKKACH AND PEARL ASSET PTY LTD
File No :PE 34321 of 2010, PE 34322 of 2010, PE 34323 of 2010, PE 34324 of 2010
For File No : SJA 1103 of 2013
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE C P CRAWFORD
Citation :CITY OF STIRLING -v- GHASSAN (JOHN) BEYDOUN; KAMAR DAOUD AKKACH AND PEARL ASSET PTY LTD
File No :PE 34325 of 2010
Catchwords:
Planning scheme - Whether appellants breached s 218 (a) of the Planning and Development Act 2005 (WA) by failing to comply with planning scheme - Whether premises being used as a restaurant - Use of premises - Meaning of 'use'
Planning scheme - Whether appellants breached s 218 (a) of the Planning and Development Act 2005 (WA) by failing to comply with planning scheme - Whether date of offence constitutes elements of offence
Planning scheme - Whether personal capacity element of offence of failure to comply with requirement of a planning scheme
Criminal law and procedure - Liability of director of corporation for actions committed by company
Criminal law and procedure - Appeals to single judge against sentence by a magistrate - Whether magistrate provided adequate reasons for sentence - Turns on own facts
Criminal law and procedure - Appeals to single judge against sentence by a magistrate - Fine for breach of planning scheme - Whether sentence manifestly excessive - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Planning and Development Act 2005 (WA)
Result:
Leave to appeal granted for some grounds of appeal
Appeals dismissed
Category: B
Representation:
SJA 1099 of 2013
Counsel:
Appellant: Mr W Vogt
Respondent: Ms A M Wood
Solicitors:
Appellant: Vogt Graham Lawyers
Respondent: Kott Gunning Lawyers
SJA 1100 of 2013
Counsel:
Appellant: Mr W Vogt
Respondent: Ms A M Wood
Solicitors:
Appellant: Vogt Graham Lawyers
Respondent: Kott Gunning
SJA 1103 of 2013
Counsel:
Appellant: Mr W Vogt
Respondent: Ms A M Wood
Solicitors:
Appellant: Vogt Graham Lawyers
Respondent: Kott Gunning
Cases referred to in judgment:
Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Attorney‑General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Basso‑Brusa v City of Wanneroo [2003] WASCA 103
Bennett v Carruthers [2010] WASCA 131
Brown v Campbell; Ex parte Brown (1964) 50 LGRA 143
Callan v City of Fremantle [2008] WASC 197
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560
Carter v Flatow (Unreported, WASC, Lib No 940651, 25 November 1994)
Chan v The Queen (1989) 38 A Crim R 337
Chen v City of Stirling [2014] WASC 183; (2014) LGERA 244
Chong and Success Australia Group Pty Ltd v City of Mandurah [2013] WASC 470
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Daniele v Shire of Swan (1998) 20 WAR 164
Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37; (2010) 199 A Crim R 83
Francis v Todd [2011] WASC 185
Gedeon v Commissioner of the New South Wales Crime Commission; Dowe v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120
Goddard v City of Stirling [2009] WASC 28
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1
Kwa v City of Stirling [2001] WASCA 370; (2001) 117 LGERA 320
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mack v The State of Western Australia [2014] WASCA 207
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405
Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69
Paolucci v Town of Cambridge [2013] WASC 50; (2013) 193 LGERA 388
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
R v Dossi (1918) 13 Cr App Rep 158
R v Kenniff & Kenniff [1903] St R Qd 17
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Roads & Traffic Authority (NSW) v Graincorp Operations Ltd [2010] NSWCA 317
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Selby v Pennings (1998) 19 WAR 520
Steelmakers Pty Ltd v City of Swan [2014] WASC 449
Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319
Strahan v Brennan [2014] WASC 190
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81; (2010) 174 LGERA 1
Teissier v City of Rockingham [2014] WASC 158
The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346
Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
University of Wollongong v Metwally [1985] HCA 28; (1985) 60 ALR 68
Uxcel Pty Ltd v City of Bayswater [2013] WASC 5
WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66
Wilson v The State of Western Australia [2010] WASCA 82
Table of Contents
1. Factual background
2. The offence the subject of each of the charges
3. The Decision
4. Mr Beydoun's appeal against conviction
(a) The grounds of appeal
(b) Ground 1: whether the learned Magistrate erred in finding that Mr Beydoun was using the Premises for a restaurant
(i) The essence of the ground of appeal
(ii) The issue raised by the ground of appeal
(iii) Ground 1 of Mr Beydoun's grounds of appeal was misconceived
(c) Ground 1A: whether the dates of the offences constituted an element of the offences
(d) Ground 2: whether the learned Magistrate erred in finding that the Premises were being used as a 'Restaurant' as defined in TPS2
What was the City required to prove?
The prosecution case and the findings made by the learned Magistrate
The learned Magistrate did not err in her finding that the evidence established that the Premises were being used as a restaurant
The (other) contentions advanced in ground 2 of Mr Beydoun's grounds of appeal
5. Mr Akkach's appeal against conviction
6. Pearl Asset's appeal against conviction
7. The appellants' appeals against sentence
(a) The sentences imposed
(b) The learned Magistrate's reasons
(c) Ground 3 of the grounds of appeal should be dismissed
(d) Ground 4 of the grounds of appeal advanced by Mr Beydoun, Mr Akkach and Pearl Asset: the sentences imposed were manifestly excessive
(i) Principles governing appeals against sentences said to be manifestly excessive
(ii) The range of sentences for offences under the Act
(iii) The sentence imposed on Mr Beydoun was not manifestly excessive
(iv) The sentence imposed on Mr Akkach was not manifestly excessive
(v) The sentence imposed on Pearl Asset was not manifestly excessive
8. Conclusion and orders
Appendix 1 ‑ Mr Beydoun's Grounds of Appeal
Appendix 2 - Mr Akkach's grounds of appeal
Appendix 3 - Pearl Asset's Grounds of Appeal
PRITCHARD J: Mr Ghassan (John) Beydoun, Mr Kamar Daoud Akkach and Pearl Asset Pty Ltd were each prosecuted in the Perth Magistrates Court for contraventions of s 218 of the Planning and Development Act 2005 (WA) (the PD Act). Section 218(a) of the PD Act provides that a person who contravenes the provisions of a planning scheme commits an offence.
The essence of each charge was that each accused had used premises at 13A and 13B Wanneroo Road Joondanna (the Premises) as a restaurant, known as Little Lebanon Café, or alternatively as Little Lebanon Café Restaurant / Café, without having first obtained the approval of the Council of the City of Stirling (the Council) as required by the City of Stirling District Planning Scheme No 2 (TPS2). Mr Beydoun and Mr Akkach were charged with three counts of that offence, said to have been committed on 2, 3 and 5 May 2009. Mr Akkach and Pearl Asset were charged with committing the same offence on 3 September 2009.[1]
[1] The charge initially alleged that the offence was committed on 9 September 2009, but on the first day of the trial, the charge was amended by changing the date of the alleged offence to 3 September 2009.
The offences were the subject of a trial spread over eight days during 2011 and 2012. The trial was complicated by the fact that the accused were not legally represented, neither Mr Beydoun nor Mr Akkach was proficient in speaking English and both men required the use of interpreters, and because some of the evidence led does not appear to have been relevant to the elements of the offence.
The learned Magistrate concluded that Mr Beydoun, Mr Akkach and Pearl Asset were guilty of each of the charges. She published detailed written reasons for that conclusion (Decision). The learned Magistrate imposed a single fine on each offender. Mr Beydoun was fined $15,000, Mr Akkach was fined $5,000 and Pearl Asset was fined $20,000.
Mr Beydoun, Mr Akkach and Pearl Asset each appeal against their conviction and sentence. Each of them has a right of appeal to this Court from the Decision,[2] subject to the grant of leave to appeal on each appeal ground.[3] The grant of leave requires that the Court be satisfied that each ground of appeal has a reasonable prospect of success.[4] The application for leave to appeal in each case was ordered to be heard at the same time as the appeal itself.
[2] Criminal Appeals Act 2004 (WA), s 7(1) read with s 6.
[3] Criminal Appeals Act 2004 (WA), s 9(1).
[4] Criminal Appeals Act 2004 (WA), s 9(2).
For the reasons set out below, there will be a grant of leave in respect of grounds of appeal 1, 2, 3 and 4 advanced by Mr Beydoun, but not in respect of ground 1A. Ground 1A had no real, rational and logical prospect of succeeding and was not arguable.[5] However, the appeal by Mr Beydoun against his conviction, and against the sentence imposed on him, should be dismissed.
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts‑Smith JJA).
There will be a grant of leave in respect of grounds of appeal 1, 3 and 4 advanced by Mr Akkach, but not in respect of ground 2. Ground 2 had no real, rational and logical prospect of succeeding and was not arguable. However, the appeal by Mr Akkach against his conviction, and against the sentence imposed on him, should be dismissed.
There will be a grant of leave in respect of ground of appeal 1, 3 and 4 advanced by Pearl Asset, but not in respect of ground 2. Ground 2 had no real, rational and logical prospect of succeeding and was not arguable. However, the appeal by Pearl Asset against its conviction, and against the sentence imposed on it, should be dismissed.
Pearl Asset required an extension of time in which to appeal, having filed its Notice of Appeal 12 days out of time. No explanation was offered for the delay in lodging the Notice of Appeal. However, the City did not oppose the grant of an extension of time, and in all of the circumstances I am prepared to grant an extension of time to Pearl Asset in which to commence the appeal.
There is a significant overlap between the appeals against conviction and the appeals against sentence. Accordingly, I deal with each appellants' grounds of appeal against conviction, commencing first with Mr Beydoun's grounds of appeal, before proceeding to deal with the appeals against sentence.
In these reasons, I deal with the following matters:
1.Factual background;
2.The offence the subject of each of the charges;
3.The Decision;
4.Mr Beydoun's appeal against conviction:
(a)The grounds of appeal;
(b)Ground 1: whether the learned Magistrate erred in finding that Mr Beydoun was using the Premises for a restaurant;
(c)Ground 1A: whether the dates of the offences constituted an element of the offences;
(d)Ground 2: whether the learned Magistrate erred in finding that the Premises were being used as a 'Restaurant' as defined in TPS2.
5.Mr Akkach's appeal against conviction;
6.Pearl Asset's appeal against conviction;
7.The appellants' appeals against sentence:
(a)The sentences imposed;
(b)The learned Magistrate's reasons;
(c)Ground 3: no error in the learned Magistrate's reasons;
(d)Ground 4: the sentences imposed were not manifestly excessive.
8.Conclusion and orders.
Factual background
There was no dispute that in January 2002, an application was made pursuant to TPS2 for a development at 13A Wanneroo Road Joondanna, namely to use the premises for 'Kebabs, Sweets and Pastries and Café'.[6] The applicants were described as Dung Nguyen, Quang Nguyen and Pearl Asset Pty Ltd and the contact person in respect of the application was John Beydoun. There was also no dispute that an approval to commence that development was granted on 12 February 2002. The approval was for a 'Take Away Food Outlet'.[7] That approval was subject to conditions, including the following:[8]
9.There shall be no increase to the seating capacity.
…
13.The premises being used for takeaway food only and that consumption of food on the premises is NOT PERMITTED.
[6] Exhibit GG, Exhibit I.
[7] Exhibit J.
[8] Exhibit J.
At the time of the offences, TPS2 did not contain any reference to 'Takeaway Food Outlet' as a permitted use of premises. When TPS2 was originally gazetted, the term 'Take Away / Fast Foods' was defined to mean:[9]
a building or portion of a building wherein food is prepared and offered for sale for consumption principally off the premises and includes in the case of industrial zones, a lunch shop.
[9] Exhibit 1.
I mention for completeness that the definition of 'Take Away / Fast Foods' was deleted from TPS2 in August 2008. At the same time the following definition of the term 'Fast Food Outlet' was inserted into TPS2:[10]
premises used for the preparation, sale and serving of food to customers in a form ready to be eaten without further preparation, primarily off the premises.
[10] Exhibit K, cl 1.1.11.2.
Between 2002 and early 2008, a business known as Baba's Café was conducted from the premises at 13A Wanneroo Road Joondanna.
In late 2007, either Mr Beydoun or Pearl Asset (no finding was made by the learned Magistrate as to the identity of the lessee) took over the lease for the adjoining shop, at 13B Wanneroo Road Joondanna, which had formerly operated under the name 'Bells Kitchen'. An officer of the City gave evidence that an approval existed under TPS2 for the use of the premises at 13B Wanneroo Road as a shop.
On 14 March 2008, the City granted a building licence to undertake work at the Premises. The licence was for work described as 'Commercial Building ‑ fit out to Baba's Kebab Café', but the approved drawings which accompanied the licence referred to Shop 13A and 13B Wanneroo Road, and indicated that both 13A and 13B were to be fitted out as one combined premises.
In late 2008, officers of the City including Mr David Spencer, a senior planning officer, attended at the Premises and met with the occupants. Mr Spencer's evidence was that 13A and 13B Wanneroo Road were being used as one premises, with no dividing wall between them, using the name 'Little Lebanon Café'. Mr Spencer formed the view that food was being consumed on the Premises and that a restaurant (as that term was defined in TPS2) was being operated at the Premises.
Mr Spencer subsequently checked the City's records and ascertained that the planning approval for 13A Wanneroo Road was for the use as a Take Away Food Outlet, subject to various conditions including those set out above, while in respect of 13B Wanneroo Road, an approval was in place for the use of the premises as a shop. In January 2009, Mr Spencer wrote to the Little Lebanon Café's proprietors and requested that they lodge an application with the City for a change of use from a 'Take Away Food Outlet' to a 'Restaurant'.
It was an agreed fact between the parties at trial that the Premises were zoned 'Business' under TPS2. There was no dispute that in order to operate a restaurant from a property zoned 'Business' under TPS2, a planning approval from the City (that is, the Council) was required for the premises in question. It was an agreed fact that no such approval had been given for the use of the Premises as a Restaurant under TPS2 on either 2, 3 or 5 May 2009, or on 9 September 2009. (Having regard to those agreed facts, it follows that such an approval could not have been given for the use of the Premises as a restaurant on 3 September 2009 either.)
An application for a change of the use of the Premises was lodged (the Application) although the Application was not in evidence at the trial. The Application was advertised, and the City received various submissions in support of and in opposition to the Application. The Application was considered by the City's Planning and Development Committee (the PD Committee) on 14 April 2009 and on 12 May 2009. The PD Committee subsequently made a recommendation to the Council that it should not grant the approval sought in the Application.
In early May 2009, Mr Beydoun and Mr Akkach made a submission to the PD Committee in support of the Application (the Submission). A copy of the Submission was in evidence. It addressed various matters which appear to have been raised by the City as concerns in relation to the Application. In addition, it contained a statutory declaration made by Mr Beydoun on 8 May 2009 (the Statutory Declaration) which I address below.
On 19 May 2009, the Council resolved to refuse the Application on various grounds, to advise the applicant for the change of use to 'cease operations as a Restaurant (Little Lebanon Cafe) from the property forthwith', and that 'should the applicant not cease operations within 28 days of Refusal notification then the City's Manager Health and Compliance INSTIGATE appropriate legal action without further reference to Council' (the Council's Decision).
Notice of the Council's Decision was provided to the proprietors of the Little Lebanon Café by letter dated 26 May 2009.
Further, on 28 May 2009 Mr Morrison, Manager Health and Compliance, for the City wrote to Mr Beydoun at Little Lebanon Café advising of the Council's Decision to refuse the Application and provided a copy of the City's Refusal for Approval to Commence Development dated 28 May 2009. Mr Morrison advised Mr Beydoun to cease operations as a Restaurant (Little Lebanon Café) from the premises within 28 days, failing which legal action would be instigated. Mr Morrison also advised that because Little Lebanon Café's operation as a Restaurant had commenced without approval, legal action would be considered.[11]
[11] Exhibit T.
The offence the subject of each of the charges
Clause 1.3.5.1(a) of TPS2 provides:[12]
Subject to Clauses 1.3.5.1(b) and (c) all use or development of land zoned or reserved under this Scheme requires the prior approval of the Council.
[12] Exhibit K.
(Clause 1.3.5.1(b) is not presently relevant - it deals with certain kinds of 'development', described in sch 17 to TPS2, that do not require the Council's approval ‑ while cl 1.3.5.1(c) deals with the form of the application for the Council's approval.)
The City alleged that Mr Beydoun, Mr Akkach and Pearl Asset had breached s 218(a) of the PD Act (by contravening the provisions of TPS2) by trading as a restaurant at the Premises without first obtaining the approval of the City for that use, as required by cl 1.3.5 of TPS2. I digress to observe that the appellants were not charged with failing to comply with a condition of the approval for the use of the Premises (or at least of 13A Wanneroo Road) as a Take Away / Fast Foods outlet. Rather, the prosecution concerned using the Premises for a specific use, namely as a restaurant, for which the prior approval of the Council had not been obtained.
In order to prove each of the charges against the appellants, the City had to prove beyond a reasonable doubt that each appellant had contravened the requirements of TPS2 in that each of them used the Premises as a Restaurant, and that no approval had been given by the Council for the use of the Premises as a Restaurant. The last element was not in dispute.
The term 'Restaurant' was defined in TPS2 to mean:[13]
a building or portion of a building wherein food is prepared solely for sale and consumption within the building or portion thereof and the expression shall include a licensed restaurant, cafe or nightclub, and also includes a restaurant at which food for consumption outside the building, or portion thereof, is sold where the Council is of the opinion that that forms only a minor part of the business.
[13] Exhibit K, cl 1.1.11.2.
It can be seen that this definition has two alternative limbs.
The Decision
On the question whether the Premises were being used for a restaurant, the learned Magistrate's reasoning was, in summary, as follows. The learned Magistrate noted that the definition of restaurant in TPS2 required satisfaction that food was prepared solely for sale and consumption within the building, or portion thereof. An establishment which supplies takeaway food was expressly included in the definition of restaurant, subject to the Council being satisfied that it forms only a minor part of the business.
Her Honour found that on the offence dates, Little Lebanon Café was being operated as an establishment at which food was prepared on site for sale and consumption on the Premises. That this occurred on 2 and 3 May 2009 was evident from photographs supplied by Mr Beydoun in the Submission and from the evidence of three witnesses: Mr Bhatti, Mr Amirthalingam and Ms Amirthalingam.
In addition, Mr Akkach's evidence was that in September 2009 Little Lebanon Café was operating in the same manner as in May 2009 and this was consistent with the other evidence, including Mr Bhatti's evidence.
The learned Magistrate found that the Premises had been refurbished and expanded from a mere takeaway outlet to cater for patrons consuming food, seated at tables on site, and this was confirmed by a sign at the front of the Premises.
The learned Magistrate was satisfied that food was not prepared solely for consumption by patrons within the Premises, and hence that the use did not come within the first limb of the definition of 'Restaurant' in TPS2. The learned Magistrate found that it was intended that food would also be prepared and sold for consumption offsite. The question then was whether the business conducted at the Premises came within the second limb of the definition of restaurant in TPS2, namely that food was prepared and sold for consumption outside the building where the Council was of the opinion that that formed only a minor part of the business. The learned Magistrate held that the use of the Premises fell within this part of the definition of 'Restaurant' in TPS2, for the following reasons.
First, she concluded that the fact that a wholesale sweet business was also operating from the Premises was irrelevant to whether a restaurant was being operated at the Premises.
Secondly, the learned Magistrate noted that the definition of 'Restaurant' in TPS2 required that the Council be of the opinion that takeaway food was a minor part of the business, and there was no evidence that the Council had delegated its authority to form an opinion to Mr Spencer or to any other officer.
Thirdly, the learned Magistrate found that the Council had formed the opinion that a restaurant was being operated at the Premises, having regard to the evidence of the Council's Decision, to its direction that the applicant be advised to cease operations as a restaurant forthwith, and to the specific reference in the Council's decision to TPS2.
Finally, the learned Magistrate rejected a submission advanced on behalf of the accused that the court was required to determine if the Council's opinion was objectively reasonable. She concluded that:[14]
there is no foundation for that proposition in TPS2. The extended definition of restaurant simply requires the Council to be of the opinion that sales of takeaway food form a minor part of the business. The words 'where Council is of the opinion that' are conclusive. No objective determination is required. In those circumstances the City is not required to adduce evidence to establish that its opinion was objectively reasonable.
[14] Decision, 26.
The learned Magistrate rejected evidence given by Mr Akkach that photographs which formed part of the Submission were intended merely to demonstrate that the Premises could be used as a proper restaurant, and also rejected his evidence that a trial was conducted in April and May 2009 of the use of the Premises, for the same purpose.
The learned Magistrate also found that Mr Beydoun was 'misleading in his evidence, if not dishonest' and found that he 'sought to displace responsibility for operating a restaurant unlawfully to City officers.'[15] However, she did not reject his evidence in its totality.
[15] Decision, 26.
As for the question whether each of the accused were engaged in the offence as at the dates alleged, the learned Magistrate found that Mr Akkach was involved in the operation of the restaurant from about 5 November 2008 onwards. She also found that Pearl Asset and Mr Akkach were operating the restaurant on 9 September 2009. (That appears to have been a typographical error, and that the learned Magistrate intended to refer to the date of the offence, namely 3 September 2009.)
The learned Magistrate concluded that Mr Beydoun was the 'principal architect of the expansion from, takeaway and shop, to restaurant.'[16] The matters which were relied upon by the learned Magistrate in reaching that conclusion were that the Submission was signed by Mr Beydoun and Mr Akkach, the Submission referred to the applicant having spent $233,000 in the development of the Premises, and purchase of Bell's Kitchen, which corresponded with the contents of the Statutory Declaration, the Statutory Declaration made by Mr Beydoun spoke in the first person at all times, including references to 'my restaurant', there was no reference to Pearl Asset in the Statutory Declaration, and Mr Beydoun arranged for approval for the building works and met with Mr Spencer and officers of the City. On the other hand, the learned Magistrate noted that the first reference to Pearl Asset was in correspondence dated 17 April 2009 from Michael Patterson and Associate, solicitors, in which Mr Patterson stated he acted for Pearl Asset and sought that Mr Beydoun, the director of Pearl Asset, be permitted the opportunity to make submissions to the PD Committee, and Pearl Asset was the registered owner of the business name 'Little Lebanon Café Restaurant / Café' from 2 June 2009, together with Mr Akkach.
[16] Decision, 26.
Mr Beydoun's appeal against conviction
(a) The grounds of appeal
Mr Beydoun's grounds of appeal against his conviction, including the particulars of those grounds, are lengthy. They are set out in full in Appendix 1. In essence, those grounds of appeal can be summarised as being:
1.The learned Magistrate erred in law or in fact in finding that Mr Beydoun was operating Little Lebanon Café in his personal capacity;
1A.The learned Magistrate erred in law or in fact in finding that the dates of the offences did not constitute an element of the offence;
2.The learned Magistrate erred in law or in fact in finding that the Premises were being used for a restaurant.
(b) Ground 1: whether the learned Magistrate erred in finding that Mr Beydoun was using the Premises for a restaurant
The essence of the ground of appeal
Ground 1 of Mr Beydoun's appeal contends that the learned Magistrate erred in making a finding that Mr Beydoun was operating Little Lebanon Café under his own name, in partnership with Mr Akkach. The lengthy particulars of ground 1 are directed to the contention that the evidence before the learned Magistrate supported the conclusion that it was in fact Pearl Asset which was in partnership with Mr Akkach at all material times, and that the City put forward no evidence to establish that Mr Beydoun operated the business as a partner in his personal capacity.
The issue raised by the ground of appeal
In summary, ground 1 of Mr Beydoun's grounds of appeal contends that the learned Magistrate made a finding that Mr Beydoun was operating Little Lebanon Café 'in partnership under his own name' when the evidence did not support that finding. Ground 1 of Mr Beydoun's grounds of appeal must fail at the outset because the learned Magistrate did not make the finding for which Mr Beydoun contends in his ground of appeal.
In the Decision, under the heading 'Who conducted the restaurant at the premises on the offence dates?' the learned Magistrate addressed the question whether each of the appellants, on the dates of the offences with which each of them was charged, was using the Premises (by operating the restaurant). She concluded that Mr Beydoun was the 'principal architect' of the development of the Premises from a takeaway food outlet into a restaurant and clearly accepted (by her finding that he was guilty of the offences) that Mr Beydoun was using the Premises as a restaurant on 2, 3 and 5 May 2009.
The learned Magistrate found that Mr Akkach was involved in the operation of the restaurant with Mr Beydoun from about 5 November 2008, and clearly concluded (again, by her finding that he was guilty of the offences on those dates) that Mr Akkach was operating the restaurant with Mr Beydoun on 2, 3 and 5 May 2009.
Finally, the learned Magistrate clearly found that Pearl Asset and Mr Akkach were operating the restaurant in September 2009, which was the date of the offence with which they were jointly charged.
The learned Magistrate did not make an express finding that Mr Beydoun was operating the restaurant under his own name, as ground 1 of his grounds of appeal contends. In his written submissions, counsel for Mr Beydoun acknowledged that that was so.
Counsel for Mr Beydoun submitted that it was implicit in the conviction that the learned Magistrate found that Mr Beydoun was operating the restaurant in his own right on 2, 3 and 5 May 2009.[17] I do not accept that submission. The learned Magistrate did not make a specific finding that Mr Beydoun was acting in a particular capacity - that is, on his own behalf, or on behalf of Pearl Asset ‑ in using the Premises as a restaurant on the relevant dates without the approval of the Council. As I explain below, it was not necessary for her to do so in order to find Mr Beydoun guilty of the offences. Nor did the learned Magistrate make any finding as to whether Pearl Asset was using the Premises as a restaurant on 2, 3 and 5 May 2009. It is not surprising that she did not do so: Pearl Asset was not charged with offences on those dates.
[17] Appellant's Outline of Written Submissions, 14 March 2014 [4].
Accordingly, ground 1 of Mr Beydoun's grounds of appeal must be dismissed.
However, it was clear from the submissions advanced on behalf of Mr Beydoun that the alleged errors at the heart of this ground of appeal pertained to the issue of the capacity in which Mr Beydoun acted in operating the restaurant at the Premises.
Ground 1 of Mr Beydoun's grounds of appeal was misconceived
I should make clear at the outset that nothing in the submissions advanced on Mr Beydoun's behalf disputed the learned Magistrate's findings as to Mr Beydoun's involvement in the operation of the restaurant at the Premises.
The learned Magistrate provided an overview of the case in which she observed that since 2002 Mr 'Beydoun and/or a corporate entity had been operating a food outlet at 13A Wanneroo Road' and that 'in or about late 2007 Beydoun and/or a corporate entity took over the lease for the adjoining shop, at 13B Wanneroo Road'.[18] Counsel for Mr Beydoun submitted that this was an acknowledgment by the learned Magistrate that one of the factual issues in dispute was whether Mr Beydoun, and/or a corporate entity, was involved in the matters to be considered.[19] Counsel's submission was that the evidence clearly established that Mr Beydoun had only ever engaged in the business (that is, the restaurant) as a director of Pearl Asset.
[18] Decision, 5.
[19] Appellant's Outline of Written Submissions, 14 March 2014 [3].
The contentions at the heart of the case advanced by Mr Beydoun at trial and on appeal were first, that the question whether Mr Beydoun was operating the restaurant in his personal capacity, or as a director of Pearl Asset, was relevant to proof of the offences with which he was charged; and secondly, that if Pearl Asset was using the Premises as a restaurant without the approval of the Council on 2, 3 and 5 May 2009, Mr Beydoun could not also be guilty of that offence on those dates.
For the reasons set out below, each basis for ground 1 was misconceived.
Use of land by a person in a particular capacity is not an element of this offence
Counsel for Mr Beydoun submitted that in order for the City to prove the offences alleged to have been committed by Mr Beydoun, it was necessary for the City to prove that Mr Beydoun 'was operating the restaurant in his own right, at the time of the alleged offences'.[20] I am unable to accept that submission.
[20] Appellant's Outline of Written Submissions, 14 March 2014 [7].
An offence will be committed under s 218(a) of the PD Act by a person who contravenes the provisions of a planning scheme. Guilt of that offence depends upon proof that the accused was a person who was subject to the requirements of a planning scheme, and failed to comply with those requirements. The requirement of TPS2 which was not complied with in this case was the requirement in cl 1.3.5.1(a), which is set out above at [26].
The first step in understanding the obligation imposed by cl 1.3.5.1(a) of TPS2 is to observe that it is directed to the use or development of land. As I have already mentioned, the prosecution notices in respect of each of the charges alleged that each of the appellants contravened the requirements of TPS2 by trading as a restaurant at 13A and 13B Wanneroo Road Joondanna without first obtaining the Council's approval. There was no reference in the prosecution notice to the 'use' of the Premises, but it is clear from the context that the allegation of trading as a restaurant constituted an allegation of use of the Premises.
The word 'use' is not defined in TPS2. I note that the word 'Development' is defined in TPS2 to encompass the use, development or redevelopment of land, and includes building works undertaken on land. However, the disjunctive use of the words 'use' and 'development' in cl 1.3.5.1(a) of TPS2 is an indication that the words are not intended to be synonymous, notwithstanding that as a result of the definition of 'development' in TPS2 a 'development' may include the concept of the use of land.[21]
[21] Daniele v Shire of Swan (1998) 20 WAR 164, 173 (Ipp J, Owen J agreeing).
The term 'use' bears a variety of meanings, depending on the context in which it is used, and whether it is used as a noun or a verb. When used as a noun its meaning includes 'the act of employing or using, or putting into service', 'a way of being employed or used, a purpose for which something is used' and 'the enjoyment of property, as by employment, occupation, or exercise of it'.[22]
[22] Macquarie Online Dictionary.
The word 'use' has been given its ordinary meaning within a statutory planning context similar to this case, as comprising 'activities which are done in … or on the land but do not interfere with the actual physical characteristics of the land'.[23]
[23] University of Western Australia v City of Subiaco (1980) 52 LGRA 360, 363 ‑ 364 (Burt CJ); see also Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [36] (Sleight C).
Accordingly, cl 1.3.5.1(a) requires that the use of the land ‑ that is, the activities undertaken on the land ‑ must have the approval of the Council, save where TPS2 otherwise provides. The requirement to obtain the prior approval of Council is not expressly directed to a particular person or group of persons. Consequently, the use of land by any person without the prior approval of the Council (save where that approval is not required under cl 1.3.5.1(a) of TPS2) will constitute a failure to comply with the requirements of TPS2.
The persons who are obliged to comply with cl 1.3.5.1(a) of TPS2 will therefore be any persons who use or develop land which is zoned or reserved under TPS2. The first and most obvious category of persons in a position to use or develop land is the owners of land, because control of the use of land is one of the fundamental rights of ownership of land. However, it is not only the owner of land who may exercise rights to use or develop that land. Persons who occupy land, or who act on behalf of the owner or occupier of land, or with their authority, may also exercise rights to use or develop the land in question.
The terms of TPS2 apart from cl 1.3.5.1(a) also support the conclusion that it is not only the owner of the land who may be required to comply with cl 1.3.5.1(a) of TPS2. Clause 1.3.5.2 of TPS2 provides that:
A person who desires to use land for a purpose which by the provisions of the Scheme is not permitted unless approval is given by the Council, shall make application for such approval in writing to the Council.
The application must set out the full name and address of the applicant, and the full name and address of 'all persons having an interest in the land and the nature of their interest'[24] which clearly would include the owner of the land. Furthermore, the application must also be signed by the owner of the land the subject of the application. Clearly, TPS2 contemplates that persons other than the owner of land may apply for approval of the Council to use or develop that land.
[24] Exhibit K, cl 1.3.5.2(a) and (c).
Because cl 1.3.5.1(a) is not directed to identified users, or classes of users, of land, in order to establish that a person has contravened the requirements of cl 1.3.5.1(a) of TPS2, it is not necessary to establish that the accused was the owner of the land or an occupier of the land in a particular capacity. All that must be established is that the person was in fact using the land ‑ for example, that the person undertook activities on the land, or permitted activities to be undertaken on the land - without the prior approval of the Council.
Even if Pearl Asset was using the land as a restaurant on 2, 3 and 5 May 2009, that did not preclude the conclusion that Mr Beydoun was guilty of that offence on those dates
The second misconception at the heart of ground 1 is that if Pearl Asset was using the Premises as a restaurant without permission on 2, 3 and 5 May 2009, Mr Beydoun could not also be guilty of the offences alleged.
Even if Pearl Asset was the lessee of the Premises, or was also involved in the operation of the restaurant at the Premises, that would not preclude Mr Beydoun's conviction for the offence of failing to comply with the requirements of cl 1.3.5.1(a) of TPS2. Mr Beydoun was the sole director of Pearl Asset. It is a trite proposition that a company can only act through its officers and agents. If a company commits an offence, its officers may be charged with the commission of that offence,[25] whether or not the company is charged.[26] In addition, s 7 of the Criminal Code Act 1913 (WA) provides that when an offence is committed, the persons who may be charged with that offence include not only every person who actually does the act or makes the omission which constitutes the offence, but also every person who does an act or omits to do any act for the purpose of enabling or aiding another person to commit the offence.
[25] See Criminal Procedure Act 2004 (WA), s 180.
[26] Criminal Procedure Act 2004 (WA), s 180(4).
In Carter v Flatow,[27] Steytler J (as his Honour was then) dismissed an appeal by Ms Carter against her conviction for using land without the necessary approval under a town planning scheme, contrary to the Town Planning and Development Act 1928 (WA). Ms Carter had argued that she was not using the land, but that the land was being used by a company of which she was a director. Ms Carter had been convicted in the Magistrates Court on the basis that she was liable for the offence by virtue of s 7 of the Criminal Code (WA). Steytler J concluded that the evidence supported that finding because it was clear that Ms Carter had knowledge of the facts giving rise to the offence, and provided 'something in the nature of assistance or encouragement, either by act or by word'.[28]
[27] Carter v Flatow (Unreported, WASC, Lib No 940651, 25 November 1994).
[28] Carter v Flatow (Unreported, WASC, Lib No 940651, 25 November 1994) 7 (Steytler J), citing R v Kenniff & Kenniff [1903] St R Qd 17, 43 (Griffith CJ).
A similar argument to that advanced here was advanced, and rejected, in Brown v Campbell.[29]Mr Brown was prosecuted for using land, of which he was the proprietor, for a used car business in breach of planning controls. There was little dispute at trial as to his actions, but he was acquitted by a magistrate on the basis that at all times he was acting as agent of a company of which he was the managing director. The Queensland Full Court upheld an appeal against the acquittal, on the basis that it was clear that Mr Brown was caught by the provisions of s 7 of the Criminal Code (Qld).
[29] Brown v Campbell; Ex parte Brown (1964) 50 LGRA 143.
Whether or not Mr Beydoun was acting on his own behalf, or on behalf of Pearl Asset, when he used the Premises as a restaurant on 2, 3 and 5 May 2009, there is no doubt that he is liable for the breaches of the PD Act of which he was convicted. However, it is unnecessary to explore this issue further because it was not alleged by the City that Pearl Asset was using the Premises as a restaurant without the Council's approval on 2, 3 and 5 May 2009, and because the evidence clearly established that Mr Beydoun was in fact using the Premises as a restaurant by engaging in activities constituting the operation of a restaurant on the Premises, on the dates alleged, without the approval of the Council.
That evidence included the Submission made in support of the Application (which referred to the Premises being used for a restaurant) which was signed by Mr Beydoun, the Statutory Declaration made by Mr Beydoun (which made reference to 'my restaurant', and to the fact that if Mr Beydoun were not allowed to trade as a restaurant he would lose his investment), and Mr Beydoun's application for building approval to consolidate 13A and 13B Wanneroo Road into the one premises (the plans for which indicated that the use of the Premises was to be as a restaurant).
In addition, although the Application was not in evidence, a letter Mr Spencer wrote in response to the receipt of the Application, to advise that the Application should be advertised, was in evidence. Mr Spencer addressed that letter to the Little Lebanon Café, marked for the attention of Mr Beydoun. That supports the inference that it was Mr Beydoun who made, or submitted, the Application.
There was also evidence which linked Mr Beydoun, as Pearl Asset's sole director and shareholder, to the use of the Premises, including to its use as a restaurant. That evidence was a letter dated 17 April 2009 from Mr Michael Paterson, a solicitor, to the City, in which Mr Paterson advised that he acted for Pearl Asset 'which trades as Little Lebanon Café from shops 13A and 13B Wanneroo Road Joondanna'.[30] That letter suggested that the restaurant was being operated by Pearl Asset, and that Mr Beydoun, as the sole director of Pearl Asset, was preparing a written submission to the PD Committee in connection with the Application.
[30] Exhibit N.
Also in evidence was a letter dated 4 June 2009 to the City from Mr Trent Durwood, a senior town planner with RPS Koltasz Smith, town planning and development consultants. Mr Durwood advised that that RPS Koltasz Smith acted for Mr Beydoun and Pearl Asset with respect to the refusal of the Application. Mr Durwood submitted that his client 'did not knowingly commence the operation of a restaurant without approval',[31] was only made aware of that on 6 January 2009, and once aware of that fact, made the Application to address issues associated with the 'Restaurant' land use.
[31] Exhibit Y.
In addition, Mr David Eley, who had been a director of Pearl Asset since March 2010, and who had been involved with Pearl Asset as an advisor to Mr Beydoun since the company was incorporated in 1999, gave evidence at the trial. Mr Eley's evidence was that in October 2008, in its capacity as a trustee for Mr Beydoun's family trust, Pearl Asset formed a partnership with Mr Akkach, and started using the name Little Lebanon Café, but that business name was not registered at that time. Mr Eley's evidence was the partnership also operated a restaurant at 200 Main Street Osborne Park, called Little Lebanon Café Restaurant and Café.
A business name search for 'Little Lebanon Restaurant / Café', which was in evidence, showed the principal place of that business as being 200 Main Street Osborne Park but indicated that the business also operated from 13A Wanneroo Road. The persons carrying on the business from 2 June 2009 until the date of the extract (9 February 2010) were said to be Pearl Asset and Mr Akkach, although Mr Beydoun was noted as a person carrying on the business with a start date and a cease date of 2 June 2009.
Finally, in his evidence at the trial Mr Beydoun referred to Pearl Asset as 'my company'.[32] He said that Pearl Asset conducted the business of Little Lebanon Café in partnership with Mr Akkach and that Little Lebanon Café had always been operated by his company. In cross examination Mr Beydoun denied the suggestion that he operated the Premises in his personal capacity up until 2 June 2009, when the business name extract for Little Lebanon Café indicated that Pearl Asset commenced operating the business.
[32] ts 49 (4 September 2012).
Together with the evidence referred to below at [96] ‑ [99], this evidence clearly established beyond a reasonable doubt that Mr Beydoun undertook activities which constituted the use of the Premises as a restaurant. Whether or not he did so on his own behalf, or as a director of Pearl Asset, the evidence supported his convictions for the offences on 2, 3 and 5 May 2009.
Accordingly, I would dismiss ground 1 of the grounds of appeal advanced by Mr Beydoun.
(c) Ground 1A: whether the dates of the offences constituted an element of the offences
Ground 1A of the grounds of appeal was included as one of Mr Beydoun's grounds of appeal by a grant of leave during the course of the hearing, to which the City did not object. Regrettably, the particulars of the ground which are set out in par (a) ‑ (d) of ground 1A were simply copied verbatim from the grounds of appeal brought by Mr Akkach and Pearl Asset. In those appeals, the ground of appeal appeared to be directed to the contention that there was no evidence to establish that the offence said to have been committed on 3 September 2009 was in fact committed on that date. That was not the date of the offences alleged to have been committed by Mr Beydoun. However, on the hearing of the appeal, counsel for the appellants submitted that this ground in respect of each appeal should be 'read as pertaining to all of the charges against each of the appellants, and the complaint is that there was no … evidence in relation to … the commission of the offence on the dates set out in each of the charges'[33]. In respect of Mr Beydoun's appeal, and in each of the other appeals, I have approached this ground of appeal on the basis of counsel's submission at the hearing of the appeal.
[33] Appeal ts 75 (19 March 2014).
Ground 1A of Mr Beydoun's appeal must be dismissed, for three reasons. First, generally speaking, the date of an offence is not treated as a material fact which the prosecution must prove beyond a reasonable doubt.[34] It has been recognised that statutory provisions may render the specification of a date material (such as in relation to sexual offences where the age of the victim is an essential element of the charge[35]) but an offence under s 218 of the PD Act is not an offence of that kind.
[34] WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66, 80 [43] (Kirby J); R v Dossi (1918) 13 Cr App Rep 158, 159 ‑ 160 (Atkin J); Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [32] (Sleight C).
[35] WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66, 81 [47] (Kirby J).
Secondly, counsel for Mr Beydoun pointed to s 21(2) of the Criminal Procedure Act 2004 (WA) as an indication that the date of the offence is an essential element of the offence. That subsection provides that (with some exceptions which are not presently relevant) a prosecution of a person for a simple offence must be commenced within 12 months after the date on which the offence was allegedly committed. The same argument was rejected in Mocilac v City of Fremantle[36] by Commissioner Sleight. I agree with his Honour's conclusion and with the reasons he gives.
[36] Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [35].
Thirdly, even if the date on which it was alleged that each offence was committed were an essential element of the offence, in my view the learned Magistrate was correct to conclude (as she clearly did, by her finding that the offences were proved) that the offences alleged against Mr Beydoun were committed on 2, 3 and 5 May 2009. In addition to the evidence which supported the conclusion that the Premises were being used as a restaurant (and to which I refer at [96] ‑ [99] below), the evidence of Mr Bhatti, Ms Amirthalingam and Mr Amirthalingam supported the conclusion that the Premises were being used for that purpose throughout May 2009. Furthermore, Mr Beydoun attached to his statutory declaration a series of photographs he had taken. Several of those photographs bear handwritten labels indicating that they show customers of Little Lebanon Café, and depict those customers sitting at tables inside the premises reading menus, eating food off crockery, using cutlery, and show table napkins, glass bottles of water and table numbers on the tables. Four of those photographs bear a date stamp of 2 May 2009, two bear a date stamp of 3 May 2009 and one bears a date stamp of 5 May 2009. Mr Akkach gave evidence that he took these photographs, either on 5 May 2009 or during the week before or after that date.
Ground 1A of Mr Beydoun's grounds of appeal should be dismissed.
(d) Ground 2: whether the learned Magistrate erred in finding that the Premises were being used as a 'Restaurant' as defined in TPS2
Ground 2 of Mr Beydoun's grounds of appeal is concerned with the learned Magistrate's finding that the Premises was being used as a restaurant. Again, the particulars of this ground are lengthy. However, this ground of appeal appears, in essence, to advance two contentions. The first is that the learned Magistrate erred in finding the offence was proved beyond reasonable doubt because the City did not establish beyond reasonable doubt that the Premises were being used as a restaurant. The second contention (which appears to be at the heart of ground 2(e) of the grounds of appeal) appears to be that in so far as the learned Magistrate concluded that the Council formed an opinion relating to the use of the Premises as a restaurant, that that opinion was not reasonably held, but that the learned Magistrate held that the accused could not challenge that opinion on a factual basis.
For the reasons set out below, ground 2 of the grounds of appeal should be dismissed.
What was the City required to prove?
One of the elements which had to be proved was that the Premises were being used as a restaurant. Having regard to the two limbs of the definition of 'Restaurant' in TPS2, the City had to prove either:
(i)that the Premises were being used as a place wherein food was prepared solely for sale and consumption with the Premises (and that could include a licensed restaurant, a café or a nightclub); or
(ii)if it were the case that food was being prepared and sold for consumption both inside and outside the Premises, the City had to prove that the Council was of the opinion that the sale of food for takeaway consumption formed only a minor part of the business.
Regrettably, the submissions advanced at the trial, and by counsel for both parties on the appeal, suggest that the parties may at times have lost sight of what had to be proved to establish that the Premises were being used as a restaurant.
The prosecution case and the findings made by the learned Magistrate
The case advanced by the City at trial in relation to this element of the offences is not entirely clear from the transcript of the trial. However, having regard to the evidence led at the trial (which left no doubt that some food was being sold from the Premises for takeaway consumption) the City's case was clearly not that the Premises were being used for a restaurant having regard to the first limb of the definition of 'Restaurant' in TPS2.
Consequently, the City's case required proof that the Premises were being used as a restaurant having regard to the second limb of the definition of that term in TPS2. It was not necessary or sufficient for the City to prove that the preparation of food for sale and consumption outside the Premises in fact constituted only a minor part of the business undertaken at the Premises. Rather, the City had to prove that the Council had formed that opinion.
The City did not adduce any direct evidence that the Council had formed that opinion. There appeared to be some reliance by the City on evidence given by Mr Spencer as to his view of whether the Premises were being used as a restaurant. However, the learned Magistrate also concluded that there was no evidence that the Council had delegated its authority to form an opinion to Mr Spencer, or to another officer of the City. (The point was not argued at the appeal hearing, but it was not suggested by counsel for the City that this was a case where the opinion of an officer of the Council could be treated as the opinion of the Council.[37] It is unnecessary for present purposes to determine that question.) The learned Magistrate thus concluded that it was not possible for the City to rely on Mr Spencer's opinion as to whether the Premises were being used for a restaurant.
[37] Carltona Ltd v Commissioners of Works [1943] 2 All ER 560.
However, the learned Magistrate found that the Council had formed the requisite opinion that the Premises were being used as a restaurant having regard to the evidence of the Council's Decision. The learned Magistrate found that:[38]
the Council did consider the [Application] on 19 May 2009, refused it and directed that the applicant be advised to 'cease operations as a Restaurant (Little Lebanon Café) from the property forthwith'.
The Council's resolution made specific reference to TPS2. I am satisfied, and find that the Council formed the opinion that a restaurant was being operated at the premises, based upon the advice and/or report of its officer.
[38] Decision, 24.
The learned Magistrate did not specify the officer whose advice or report she concluded the Council had accepted. The Minutes of an earlier meeting of the Council (prior to the date on which it made the Council's Decision), which were in evidence, indicate that the Council received an 'Officer's Recommendation'.[39] As I have already observed, there was also evidence that the Application had been referred to the PD Committee, that that Committee was required to make a recommendation to the Council for its consideration, and that it did make a recommendation. The Council's Decision reflects the terms of the recommendation made by the PD Committee. It thus appears that it was the report of the PD Committee to which the learned Magistrate referred in her reasons for decision.
[39] Exhibit O.
The evidence which was before the Court in relation to the Council's Decision did not expressly indicate that the Council had formed the view that the sale of takeaway food constituted only a minor part of the business. However, the Council clearly formed the opinion that the Premises were being used as a restaurant, as that term is defined in TPS2. It did so in circumstances where ‑ as the fact of the Application and the content of the Submission to the PD Committee made clear ‑ food was being prepared at the Premises for sale and consumption on the Premises, as well as for takeaway consumption.
The learned Magistrate thus appears to have drawn the inference that the Council's opinion that the Premises were being used as a restaurant necessarily, in the circumstances, encompassed the opinion that the sale of takeaway food from the Premises was only a minor part of the business of the Little Lebanon Café.
The learned Magistrate did not err in her finding that the evidence established that the Premises were being used as a restaurant
The grounds of appeal do not directly contend that the learned Magistrate erred in relying upon the Council's Decision to draw the inference that the Council had formed the opinion that the sale of takeaway food from the Premises was only a minor part of the business of the Little Lebanon Café. To the extent that such a contention is intended to be encompassed within this ground of appeal, I am not persuaded that the learned Magistrate erred in drawing the inference that she did, for the following reason.
The Council's Decision was made in response to the Application. The Council's Decision was made after Mr Beydoun and Mr Akkach were given the opportunity to make the Submission to the PD Committee. That Submission, and the Statutory Declaration which was included within it, indicated that some takeaway food was sold from the Premises. Accordingly, in so far as the Council formed the view that the Premises were being used as a restaurant, that opinion could not have been to the effect that food was prepared solely for sale and consumption on the Premises (that is, the first limb of the definition of 'Restaurant'). However, the Council clearly had in mind the definition of 'Restaurant' in TPS2, and it referred expressly to TPS2 in the Council's Decision. In these circumstances, the only reasonable inference[40] is that the Council must have concluded that although some food was being sold from the Premises for consumption off-site, that the takeaway component of the business constituted only a minor part of Little Lebanon Café's business. In that respect, I do not discern any error in the learned Magistrate's reasoning.
The (other) contentions advanced in ground 2 of Mr Beydoun's grounds of appeal
[40] Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 104 (Gibbs, Stephen & Mason JJ); Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319, 329 ‑ 330 [25] (McHugh J).
The focus of much of ground 2 of Mr Beydoun's Grounds of Appeal appears to be that the learned Magistrate erred in concluding that the Premises were being used as a restaurant because the evidence established that the sale of food for takeaway consumption was not simply a minor part of the business. To that extent, ground 2 must be dismissed for two reasons.
First, the learned Magistrate did not make a finding, having regard to the evidence, that the sale of food from the Premises for takeaway consumption constituted only a minor part of the business. Ground 2 must be dismissed because it attacks a finding which was not actually made by the learned Magistrate.
Secondly, despite the fact that much evidence was led by the appellants at the trial in relation to the sale of takeaway food from the business, that evidence was irrelevant to proof of the offences. Proof of the offences required proof that the Council had formed the opinion that the sale of food for takeaway consumption comprised only a minor part of the business.
The remaining aspect of ground 2 of Mr Beydoun's grounds of appeal was based on the contention that the Council's opinion, relied upon by the learned Magistrate as establishing this element of the offence, was not reasonably held. Ground 2(e) contended that the learned Magistrate erred in expressing the following conclusion:[41]
With respect to the submission that the City must adduce evidence of the facts relied upon for the purpose of determining whether takeaway sales formed a minor part of the business, the implication is that the Court must determine whether the opinion was objectively reasonable. There is no foundation for that proposition in TPS2. The extended definition of restaurant simply requires the Council to be of the opinion that sales of takeaway food form a minor part of the business. The words 'where Council is of the opinion that' are conclusive. No objective determination is required. In those circumstances the City is not required to adduce evidence to establish that its opinion was objectively reasonable.
[41] Decision, 25.
In his oral submissions, counsel submitted that 'one has to go behind the Council's opinion to make sure it was properly founded'.[42] Although this aspect of ground 2 was not characterised by counsel as amounting to a contention that the Council's opinion was not a valid one, on the basis that it was not reasonably formed, it appears that that was the point to which the argument was directed.
[42] Appeal ts 42 (19 March 2014).
There is no doubt that an administrative decision, the validity of which constitutes an element of a criminal offence, or which forms part of the evidence relied upon to establish an element of the offence, in a criminal proceeding, can be challenged in that criminal proceeding if the administrative decision was beyond the statutory power of the person who performed it.[43] However, to the extent that ground 2 can be understood to contend that the learned Magistrate erred in dealing with what was intended to be a collateral challenge to the validity of the Decision ground 2 must be dismissed for the following reasons.
[43] Gedeon v Commissioner of theNew South Wales Crime Commission; Dowe v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120, 133 [23]; Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, 79 ‑ 80, 87, 105, 124, 147 ‑ 148; Selby v Pennings (1998) 19 WAR 520, 536 (Ipp J), 543 (Wallwork J), 550 (Owen J); Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351, 363 [46] (McLure P), 375 ‑ 376 [110] (Allanson J).
First, having regard to the transcript of the trial, the appellants did not actually advance a collateral challenge to the validity of the Council's opinion. It was certainly not expressly raised, and there is nothing in the transcript to suggest that either counsel for the City, or the learned Magistrate, understood that the appellants sought to call into question the validity of the Council's opinion.
The case the appellants appeared to advance at trial was that the Court was required to assess whether, in light of the evidence adduced at the trial, the Council's opinion could be said to be reasonable. Although as a general observation, there is force in the submission that all statutory powers should (subject to a contrary indication) be required to be exercised reasonably,[44] the fact that a power is not exercised reasonably will not necessarily result in its invalidity. Traditionally, a finding of jurisdictional error on the grounds of unreasonableness would require a finding that the decision was one which was so unreasonable that no reasonable decision maker could have reached it.[45] In Minister for Immigration and Citizenship v Li,[46] the plurality emphasised that the test for 'manifest unreasonableness' was not limited to that formulation. Manifest unreasonableness will be found in a decision which is arbitrary, capricious or fanciful,[47] a decision which lacks an evident or intelligible justification,[48] or a decision where the result itself 'bespeaks error'.[49] Merely because a decision is unreasonable, in the sense that it is one about which reasonable minds might differ, is not sufficient to render the decision invalid. (A contrary conclusion would blur irretrievably any distinction between judicial review and merits review.) In my view, the appellants did not raise a challenge to the validity of the Council's opinion at the trial.
[44] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 370 ‑ 371 [88] ‑ [92] (Gageler J), citing Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 36 (Brennan CJ) and Attorney‑General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 36 (Brennan J).
[45] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, 230.
[46] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.
[47] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [28], [65].
[48] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [76].
[49] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [85].
Secondly, to the extent that counsel for the appellants sought to raise that argument for the first time on the appeal, I would not entertain that course. It is well established that a party in criminal proceedings is bound by the conduct of his or her case, and save in exceptional cases will not be permitted to rely on an argument not advanced in the court below.[50] In the present case, a consideration of the validity of the Council's opinion would require a consideration of the terms of the decision and the material before the decision maker. Not all of that material was before the Court below and no application was made to have such material placed before the Court.
[50] A v Corruption and Crime Commissioner [2013] WASCA 288 [110] ‑ [112]; Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [13] (Buss JA), [67] (Newnes JA, Pullin JA agreeing); see also Roads & Traffic Authority (NSW) v Graincorp Operations Ltd [2010] NSWCA 317 [114] ‑ [115]; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 8; University of Wollongong v Metwally [1985] HCA 28; (1985) 60 ALR 68, 71.
I should also add that it is not immediately apparent that a challenge to the validity of the Council's opinion on the ground of manifest unreasonableness would in any event have been open. Although the formation of an opinion as to whether a business is a 'restaurant' under TPS2 appears to be a decision made pursuant to subsidiary legislation,[51] the 'opinion' of the Council was arguably a finding as to the existence of a state of facts. Other than for jurisdictional facts (that is, facts on which the decision maker's jurisdiction depends), it is far from clear that findings of fact may be the subject of judicial review on the ground of manifest unreasonableness.[52]
[51] Interpretation Act 1984 (WA), s 5.
[52] Cf The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [148] ‑ [194] (Edelman J).
Furthermore, having regard to the material which is before the Court, it is far from apparent that the appellants would have had a case that the Council's opinion could properly be characterised as manifestly unreasonable. The question for the Council was whether the sale of food for takeaway consumption formed only a 'minor' part of the business at the Premises. The word 'minor' has a variety of meanings. Within its present context it appears to mean 'lesser, as in size, extent or importance, or being the lesser of two'[53] and
designating the lesser (in any sense) of two things, classes, etc, that have a common designation. Also applied to those members of a class that collectively form a subdivision regarded as being of lesser magnitude, status etc than the rest. Opposed to major.[54]
[53] Macquarie Online Dictionary.
[54] Oxford English Dictionary Online.
Whether takeaway food sales are a minor part of a business ‑ that is, a less important part of a business than the sale of food for consumption on the same premises - may involve consideration of a variety of factors. Within the context of consideration by a council, largely in a planning context, the conclusion is one which is likely to be reached as a matter of overall impression, rather than on the basis of a precise analysis of business revenue, sales transactions, customers, or other matters relating to the operation of the business. Given the fact that the Application for approval to use the Premises as a restaurant was made in circumstances in which the Premises already had approval for use as a takeaway food business, the Council's opinion that the sale of takeaway food formed only a minor part of the business at the Premises does not, at first blush, appear manifestly unreasonable.
Thirdly, returning to the alleged error in the reasoning of the learned Magistrate set out at [105], the learned Magistrate's observation that the opinion of the Council was 'conclusive' must properly be understood as a conclusion that it was not for the Court itself to form the opinion whether the takeaway food component was a minor part of Little Lebanon Café's business. Rather, the learned Magistrate was simply pointing out, correctly, that what was required to be proved by the City was that the Council had formed the requisite opinion. Whether that opinion was a valid one was an entirely different question.
Ground 2 of Mr Beydoun's grounds of appeal should be dismissed.
Mr Akkach's appeal against conviction
Mr Akkach's grounds of appeal are also lengthy. There is a considerable degree of overlap with the appeal grounds advanced by Mr Beydoun. Mr Akkach's appeal grounds are set out in full in Appendix 1. Shorn of their particulars, those grounds of appeal against conviction can be summarised as being:
1.The learned Magistrate erred in law or in fact in finding that the Premises were being used for a restaurant;
2.The learned Magistrate erred in law or in fact in finding that the dates of the offences did not constitute an element of the offence.
For the reasons set out above in relation to ground 2 of Mr Beydoun's grounds of appeal, ground 1 of Mr Akkach's appeal grounds must be dismissed. To those reasons, and the references to the evidence therein, I need only add that the evidence clearly established that Mr Akkach was using the Premises for a restaurant on 3 September 2009. An extract for the business name 'Little Lebanon Restaurant / Café', which was in evidence indicated that the parties carrying on the business from after 2 June 2009 until the date of the extract (9 February 2010) were Mr Akkach and Pearl Asset.
Further, Mr Akkach's evidence was that in September 2009 the restaurant was operating in the same manner as in May 2009 and this was consistent with the other evidence, including Mr Bhatti's evidence about the activities at the Premises in May and in September 2009.
For the reasons set out above in relation to ground 1A of Mr Beydoun's grounds of appeal, ground 2 of Mr Akkach's appeal grounds must be dismissed.
Pearl Asset's appeal against conviction
Like the appeal grounds advanced by Mr Beydoun and by Mr Akkach, Pearl Asset's grounds of appeal are also lengthy. They are set out in full in Appendix 3. Shorn of their particulars, Pearl Asset's grounds of appeal in relation to its conviction are in essence that:
1.The learned Magistrate erred in law or in fact in finding that the Premises were being used for a restaurant;
2.The learned Magistrate erred in law or in fact in finding that the dates of the offences did not constitute an element of the offence.
For the reasons set out above in relation to ground 2 of Mr Beydoun's grounds of appeal, ground 1 of Pearl Asset's appeal grounds must be dismissed. Again, to those reasons, and the references to the evidence contained therein, I need only add the references to the additional evidence set out in [117] ‑ [118] above.
For the reasons set out above in relation to ground 1A of Mr Beydoun's grounds of appeal, ground 2 of Pearl Asset's appeal grounds must be dismissed.
The appellants' appeals against sentence
It is convenient to deal with the appellants' appeals against sentence together, given the considerable overlap between them.
(a) The sentences imposed
The appellants were sentenced by the learned Magistrate on 25 July 2013 at a hearing immediately following her delivery of written reasons for her decision to convict each of the appellants.
The maximum penalty for a breach of s 218 of the Act as at the date of the offences was $50,000 for individuals[55] and $250,000 for corporate offenders.[56] Although a breach of s 218 could also have resulted in the imposition of a daily fine, counsel for the City made clear that the City did not submit that a daily fine should be imposed.[57]
[55] Section 223 of the Act as in force in May and September 2009.
[56] Sentencing Act 1995 (WA), s 40(5).
[57] ts 5 ‑ 6 (25 July 2013).
Having considered the submissions of counsel for the City and of the appellants, the learned Magistrate sentenced each appellant to a fine, which she described as a 'global' penalty.[58] She imposed a single fine of $15,000 on Mr Beydoun in respect of the three offences of which he was convicted. The learned Magistrate imposed a single fine of $5,000 on Mr Akkach in respect of the four offences of which he was convicted. Finally, the learned Magistrate imposed a fine of $20,000 on Pearl Asset in respect of the offence of which it was convicted.
[58] ts 24 (25 July 2013).
No complaint is made about the fact that the learned Magistrate imposed a single fine in respect of the offences committed by Mr Beydoun and Mr Akkach. Clearly that course was open to her. The offences were part of a series of offences of the same or a similar kind, in respect of which the imposition of a single fine for all of the offences was possible.[59]
(b) The learned Magistrate's reasons
[59] Sentencing Act 1995 (WA), s 54(1).
The learned Magistrate delivered oral reasons for the sentences she imposed on the appellants. Those reasons were detailed and addressed each of the issues that had been the subject of submissions by the parties. In summary, the learned Magistrate's reasons for decision on the sentence made reference to the following matters.
First, the learned Magistrate considered the appellants' ability to pay a fine. It was submitted on behalf of Pearl Asset that it was unable to pay a fine of any magnitude due to its financial circumstances. In his submissions on behalf of Pearl Asset, Mr Eley had advised the learned Magistrate that the most recent tax return for the company which was available (for the 2010 financial year) showed that the company made a small loss. The learned Magistrate was, however, informed that 30 people were employed in the business. It was submitted that the imposition of a significant fine may result in the loss of employment for some of the staff working for Pearl Asset in the business. Finally, it was submitted on behalf of Pearl Asset that it was a trustee company only. Mr Beydoun also submitted that any fine imposed would cause hardship to him, as well the possible loss of employment for staff in the business.
The learned Magistrate concluded that no evidence had been produced to satisfy the Court that either Pearl Asset or Mr Beydoun did not have capacity to pay a fine. In reaching that conclusion, the learned Magistrate noted that the business continued to operate at the Premises and it was able to support the employment of 30 people (albeit not all on a full time basis). The learned Magistrate concluded that the business enjoyed continuing trade sufficient to enable it to pay those employed and consequently she inferred that the business had capacity to pay fines imposed by the Court.
Secondly, the learned Magistrate considered whether the appellants had demonstrated remorse. Both Mr Beydoun and Mr Akkach submitted that they did not consider that they had done anything wrong. It was submitted on behalf of Pearl Asset that the company had done what was required by the City, and had ceased trading or operating as a restaurant after the expiration of the 30 day notice period set out in the Decision and before the date on which it was alleged to have committed the offence of which it was convicted, in September 2009.
The learned Magistrate did not accept that submission. The learned Magistrate pointed out, by reference to the documents tendered in evidence, that Mr Spencer visited Little Lebanon Café on 12 December 2008, and wrote to the business on 6 January 2009 to advise that the use of the Premises as a restaurant had not been approved by the Council and advised that an application for approval should be made. The Application was submitted on 18 February 2009. The Council's Decision was set out in a letter to Little Lebanon Café dated 28 May 2009, at which point Little Lebanon Café was advised to cease operation as a restaurant.
However, the learned Magistrate had found, by her conviction of Pearl Asset, that the Premises were being used as a restaurant on 3 September 2009. Accordingly, for sentencing purposes the learned Magistrate did not accept that the Premises had ceased to be used as a restaurant before September 2009.
The learned Magistrate concluded that no remorse had been shown on behalf of Pearl Asset, Mr Beydoun or Mr Akkach.
Thirdly, the learned Magistrate considered the nature of the offending. Her Honour accepted that up until early January 2009, this was not a case of a deliberate, flagrant breach of the requirements of TPS2 in respect of the use of the Premises. She also accepted that Mr Beydoun had sought to obtain retrospective approval for the use of the Premises as a restaurant. However, the learned Magistrate found that from January 2009 when Mr Spencer advised of the absence of any approval for the use of the Premises, and clearly from late May 2009 when the appellants were advised of the Council's Decision to refuse the Application, it had been made clear to Mr Beydoun, Mr Akkach and Pearl Asset that the Council had not approved the Application, and from late May 2009 they were on notice to cease use of the Premises as a restaurant within 28 days. That did not occur.
The learned Magistrate concluded that the Premises were used as a restaurant over the period of time between May and September 2009.
Fourthly, the learned Magistrate considered the respective roles of the appellants in the use of the Premises as a restaurant. Her Honour was satisfied that it was Mr Beydoun's vision, and his initiative, to expand the use of the Premises to a restaurant. The learned Magistrate was satisfied that Mr Beydoun was the 'prime mover' in the commission of the offences, as compared with Mr Akkach. She found that Mr Akkach joined that enterprise between August and November 2008 but that he was 'not the prime mover'. Rather, his role was to prepare and serve food at the Premises.
In Swan Bay Holdings Pty Ltd v City of Cockburn,[88] the offender was convicted, after a plea of guilty at the commencement of the trial, of a breach of the Act by carrying out a development without planning approval. The breach involved the levelling, compacting and sealing of the land, and the construction of fences, a roadway and buildings, in order to use the land for storage yards and transport depots. Retrospective approval for the development was, however, sought and given. The company was sentenced to a fine of $150,000, which was not disturbed on appeal.
[88] Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81; (2010) 174 LGERA 1.
In Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda,[89] the offender was convicted of a breach of the Act by using land for parking commercial vehicles, without approval. The breach was described as a 'large scale operation … conducted with a flagrant disregard'[90] for the requirement for planning approval, and for which the company had shown no remorse. The company was sentenced to a fine of $100,000 plus daily penalties, resulting in a total fine of $116,900. An appeal against the sentence was dismissed.
[89] Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234.
[90] Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234 [61] (Sleight C).
In Able Lott Holdings Pty Ltd v City of Fremantle,[91] the offender was convicted, after a plea of guilty, of one breach of the PD Act, and two breaches of the Local Government (Miscellaneous Provisions) Act 1960 (WA) arising from development works it carried out to a heritage building in Fremantle. The work was conducted without the approvals required by the PD Act, and building work proceeded without a building licence and approvals required, and in contravention of a stop work notice issued, under the Local Government (Miscellaneous Provisions) Act. The penalty imposed in respect of the offence under the PD Act was a fine of $100,000 and a daily penalty of $500 per day for 162 days, resulting in a total fine of $181,000. (For present purposes, it is not necessary to mention the other fines imposed.)
[91] Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87.
The learned Magistrate viewed the offences as involving a brazen and deliberate attempt to circumvent limitations which applied to it, that the development was conducted for commercial benefit, and that a significant deterrent penalty was warranted. Murray J dismissed an appeal against the sentences, concluding that the learned Magistrate was right to find that the conduct involved constituted serious offending, and that the sentences were not manifestly excessive. An appeal against his Honour's decision was also dismissed.[92]
[92] Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39.
The cases in relation to sentences following the amendment of the PD Act to increase the maximum penalties, and which resulted in a maximum penalty under the Act for a breach of s 218 by a corporation of $1,000,000 with a maximum daily penalty of $125,000, were as follows.
In Chong,[93] the facts of which are set out above, Edelman J rejected that part of the appeal which contended that the fines imposed on Success Australia were manifestly excessive and did not disturb those penalties. The company had been fined $50,000 plus $2,500 in daily penalties, totalling $52,500 for the first offence, and $7,500 plus $750 in daily penalties (for two days) totalling $8,250 for the signage offence.
[93] Chong and Success Australia Group Pty Ltd v City of Mandurah [2013] WASC 470.
In Steelmakers Pty Ltd v City of Swan,[94] the owner of land (Bayblue Holdings Pty Ltd) and the tenant of that land (Steelmakers Pty Ltd) were prosecuted for offences under the Act. Bayblue's conviction for that offence was set aside on appeal and it is not necessary for present purposes to deal further with that aspect of the appeal. In the case of Steelmakers, the charge was that, over a period of six months in 2013, it carried out a development of the land (namely some alterations and additions to a warehouse) and failed to comply with a condition imposed under the applicable town planning scheme, contrary to s 218(c) of the Act. The City's case effectively stated that the conditions with which Steelmakers did not comply concerned entry into a deed as between the City and Bayblue, which had to be drafted by the City's solicitors, and which was only entered into by the City and Bayblue on 30 January 2014. In addition, the City alleged that Steelmakers had not complied with two further conditions of the approval to conduct the development, which concerned repairs, and sealing, kerbing and drainage works to parking and access areas near the warehouse. That work was carried out by 30 January 2014.[95]
[94] Steelmakers Pty Ltd v City of Swan [2014] WASC 449.
[95] Steelmakers Pty Ltd v City of Swan [2014] WASC 449 [90] – [94] (Kenneth Martin J).
On the appeal, Kenneth Martin J held that the learned Magistrate had made errors in relation to the sentence imposed on Steelmakers, arising from considerable confusion in the prosecutor's case about the circumstances of the offending. That confusion having been clarified as a result of the appeal, his Honour re-sentenced Steelmakers. His Honour imposed a fine of $15,000 plus a daily penalty of $100 per day, resulting in a total fine of $32,700. He did so on the basis that Steelmakers was a first offender, had entered a plea of guilty at an early occasion, and that its overall level of culpability was on the 'relatively low side'.[96]
The sentence imposed on Mr Beydoun was not manifestly excessive
[96] Steelmakers Pty Ltd v City of Swan [2014] WASC 449 [152] (Kenneth Martin J).
Counsel for Mr Beydoun submitted that the offences committed by his client were not continuing offences but were committed on 3 separate dates, and involved an easily reversible illegal use of the land as opposed to a contravention involving the construction or alteration of buildings. He submitted that when compared with many contraventions of s 218 of the Act, these offences were 'quite insignificant in issue and impact'[97] as they involved nothing more than trading as a restaurant without approval on three separate dates. Counsel for Mr Beydoun submitted that this was not a case involving a complete disregard for planning approvals, that the offences of which his client were guilty were committed prior to the City's direction that the use of the Premises as a restaurant should cease, and that retrospective approval was sought once the absence of approval was drawn to his client's attention. Counsel for Mr Beydoun also noted that the learned Magistrate did not draw the conclusion that Mr Beydoun and Mr Akkach had made a commercial decision to flout the planning laws. Finally, it was submitted that Mr Beydoun did not have the capacity to pay a substantial fine.
[97] Appellant's Outline of Written Submissions, 14 March 2014 [83].
In all of the circumstances, I am not persuaded that the penalty imposed on Mr Beydoun was manifestly excessive, for the following reasons. As I have already noted, the maximum penalty available in respect of each offence of which Mr Beydoun was convicted was a $50,000 fine. In a case in which a single fine is imposed that fine must not be more than the total sum of the fines provided in respect of each of the offences. That total sum in this case was $150,000 (given that this were not said to be continuing offences in respect of which a daily fine may be open). The fine imposed on Mr Beydoun for the three offences was $15,000 or 10% of the maximum penalty.
As for the seriousness of the offending, in my view, each of the offences in question were at the lower end of the scale of seriousness for offences of this kind, but were by no means at the lowest end of the scale. They involved a use of the land which was easily reversed. While the learned Magistrate found that while there was evidence of some parking and noise problems for neighbouring residents and tenants, that impact was not solely attributed to Little Lebanon Café.
The offences should not, however, be regarded as 'quite insignificant' as counsel for Mr Beydoun contended. Planning requirements exist so that local authorities can ensure that the use of land is conducted in accordance with proper and orderly planning principles. At the local level, these have regard to factors as diverse as the location of particular kinds of businesses in different areas throughout a shire, to the adequacy of services and facilities within and near commercial premises having regard to the activities to be conducted there.
Although the offences did not start out as a deliberate breach of the requirement for planning approval, nevertheless Mr Beydoun did not desist from using the Premises as a restaurant after the need for approval was drawn to his attention and while his application for approval was under consideration. Furthermore, although the breaches were prosecuted as three separate offences, there is no doubt that the conduct in question had been continuing, unabated, since Mr Spencer visited the Premises in January 2009. In addition, although the learned Magistrate did not make a finding that the offences were motivated by commercial interest, nevertheless it cannot be ignored that the offences were committed within the context of the pursuit of a commercial venture. Finally, the seriousness of Mr Beydoun's offending, at least as compared with Mr Akkach, must take into account the learned Magistrate's finding that he was the principal architect of the transition from takeaway food outlet to restaurant.
The written submissions for the appellants sought to suggest that Pearl Asset had been misled by the staff of the City, by way of a mistake of law, into believing that it had obtained the necessary approvals, that it had invested $200,000 into renovating the Premises, and based on that mistaken belief, started to trade as a restaurant.[98] In so far as that submission was intended also to be made in relation to Mr Beydoun[99] I do not accept that it supports the conclusion that the fine imposed on Mr Beydoun was manifestly excessive. The conclusion reached by the learned Magistrate was that use of the Premises as a restaurant did not commence as an attempt to flagrantly flout the planning requirements. Nevertheless, from January 2009, it was made clear to Mr Beydoun and Mr Akkach that they did not have planning approval, and yet they continued to carry on the use of the Premises as a restaurant, while awaiting the outcome of the application they subsequently made for planning approval.
[98] Appellant's Outline of Written Submissions, 14 March 2014 [89].
[99] Cf Ground 4(b) of Mr Beydoun's grounds of appeal.
The range of sentences for single offences under the Act committed by individuals, when the maximum penalty was the same as in this case, lies between a fine of $4000 for a breach at the lowest end of the scale of seriousness (in Callan) to a fine of $30,000 (in Goddard) and to a fine of $10,000 plus daily penalties totalling $34,300 (in Kwa) for offending at the more serious end of the spectrum.
In terms of Mr Beydoun's personal circumstances, although he submitted that he did not have capacity to pay a significant fine, he did not provide the Court with any information in relation to his capacity to pay a fine.[100] Little can be made of that claim in the circumstances.
[100] Cf Sentencing Act 1995 (WA), s 53(2).
The ground of appeal also contends that the sentence was manifestly excessive given that there was no need for specific deterrence. There are two answers to that submission. First, although Mr Beydoun had no prior convictions, he showed no remorse for the offences, continuing to submit at the sentencing hearing that he had done nothing wrong. Secondly, the cases make clear that general deterrence is an important consideration in sentencing for offences under the PD Act. Hasluck J made this point in Swan Bay Holdings Pty Ltd v City of Cockburn[101] when he said:
Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also on 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.
[101] Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81; (2010) 174 LGERA 1, 15 [74].
Taking all of these considerations into account, in my view, it cannot be said that a single fine of $15,000 for all three offences was manifestly excessive.
The sentence imposed on Mr Akkach was not manifestly excessive
The submissions advanced on Mr Akkach's behalf in relation to ground 4 were largely the same as those advanced on behalf of Mr Beydoun.
The fine imposed on Mr Akkach was a single fine of $5000 in respect of the four offences of which he had been convicted. The maximum penalty for each offence was $50,000 and the total single fine which could have been imposed in respect of those four offences was $200,000.
There is no doubt that the sentence imposed was well within the proper sentencing range, largely for the same reasons as are set out above in relation to Mr Beydoun's appeal. In addition, that conclusion follows having regard to Mr Akkach's lesser culpability (as compared with Mr Beydoun) for the offences. I have not overlooked the fact that Mr Akkach was also convicted of the offence on 3 September 2009. That was a more serious offence because it occurred once Mr Beydoun and Mr Akkach had been directed to stop using the Premises as a restaurant.
Ground 4 of Mr Akkach's grounds of appeal must be dismissed.
The sentence imposed on Pearl Asset was not manifestly excessive
The sentence imposed for the sole offence of which Pearl Asset was convicted was $20,000. At the time, the maximum penalty for that offence, given Pearl Asset is a company, was $250,000.
Counsel for Pearl Asset submitted that the offence was not a continuing offence, but was committed on one day, and was 'therefore less serious'.[102] He submitted that the company 'did nothing more than trade as a restaurant without approval on one day'.[103] Counsel for Pearl Asset submitted that the offence involved the easily reversible illegal use of land, and compared with many other contraventions of s 218 of the Act, was quite insignificant.
[102] Appellant's Outline of Written Submissions, 14 March 2014 [94].
[103] Appellant's Outline of Written Submissions, 14 March 2014 [103].
While I accept that the offence of which Pearl Asset was convicted was at the lower end of the spectrum for offences by corporate offenders, I do not accept that the offence can be characterised as 'quite insignificant' as counsel for Pearl Asset contended. I rely on the matters to which I referred in assessing the seriousness of the offences committed by Mr Beydoun and Mr Akkach at [183] ‑ [185] above.
However, in my view, the offence was more serious than the offences committed by Mr Beydoun and Mr Akkach in May 2009 because it was committed after the City had issued a directive that the use of the Premises as a restaurant must cease in view of the Council's refusal to grant approval for that use. Moreover, it was apparent from the evidence that the use of the Premises on 3 September 2009 was not an isolated occurrence, but rather that the Premises had continued to be used as a restaurant since May 2009. No explanation was advanced for why the Premises was still being used as a restaurant on 3 September 2009, more than 3 months after the Council Decision was communicated to Mr Beydoun and Mr Akkach. The submission by counsel for Pearl Asset that it could not be said the company should have acted more quickly to cease trading as a restaurant without approval[104] must be rejected.
[104] Appellant's Outline of Written Submissions, 14 March 2014 [81].
The sentences for offences under the Act committed by corporate offenders are of very limited assistance in the present case. Many of them involved blatant breaches of the Act, involving construction on, or alteration of, land, for commercial benefit, and offending over a considerable period of time (resulting in the imposition of considerable daily penalties) or multiple charges, and consequently total fines in excess of $100,000. A very minor breach (in Steelmakers) involved a fine of $15,000 and daily penalties resulting in a total fine of $32,700. Chong also involved a relatively minor breach and resulted in the imposition of a total fine of $52,500 for the primary offending.
The breach by Pearl Asset must be regarded as more serious than these very minor breaches of the PD Act because it was committed after the City issued the clear directive that the use of the Premises as a restaurant should cease, in view of the Council's refusal of the Application.
Counsel for Pearl Asset submitted that the fine of $20,000 was a large sum for a small business to pay, particularly in light of the submission made to the learned Magistrate that any significant fine 'may or would result in the loss of employment of employees'.[105] However, little information was placed before the learned Magistrate to assist her to assess Pearl Asset's capacity to pay. Reference was made to the company's tax return, but as the learned Magistrate noted, the business being operated by Pearl Asset was sufficiently substantial that it employed 30 employees. Furthermore, counsel for Pearl Asset submitted that the company had invested $200,000 in renovating the Premises, which also supports the conclusion that the company has the means to pay a fine.
[105] Appellant's Outline of Written Submissions, 14 March 2014 [101].
Finally, although Pearl Asset had no prior convictions, as the learned Magistrate noted, no remorse was demonstrated on its behalf. Further, as I have observed above, there is a need for the penalties imposed in cases of this kind to have an element of general deterrence.
Taking all of these considerations into account, in my view it cannot be said that the fine imposed on Pearl Asset was manifestly excessive.
Ground 4 of Pearl Asset's grounds of appeal should be dismissed.
Conclusion and orders
Each of the grounds of appeal advanced by Mr Beydoun, Mr Akkach and Pearl Asset should be dismissed.
I will hear from counsel as to the orders which should be made to dispose of these appeals.
Appendix 1 ‑ Mr Beydoun's Grounds of Appeal
Mr Beydoun's grounds of appeal are:
1.An error of law, in that the finding was against the weight of evidence and of fact, in that the Magistrate found that the accused was operating Little Lebanon Café /Restaurant ("the business") in partnership under his own name on the basis that the Appellant had referred to the business as 'his' in a statutory declaration made in support of planning approval purposes, notwithstanding that:
(a)the Appellant gave evidence that the business partner had always been Pearl Asset Pty Ltd as trustee for the Beydoun Family Trust No 2 of which he was the sole director until 2010;
(b)the Appellant's co-director of Pearl Asset Pty Ltd gave evidence that Pearl Asset Pty Ltd as trustee for the Beydoun Family Trust No 2 was the business partner, which evidence was not referred to or discredited by the Magistrate;
(c)the Appellant's co-accused and business partner Kamar Daoud Akkach gave evidence that his partner was Pearl Asset Pty Ltd as trustee for the Beydoun Family Trust No 2 and not the accused, which evidence was not referred to or discredited by the Magistrate;
(d)there was an exhibit tendered by the prosecuting authority that showed a planning approval related to the business were submitted by Pearl Asset Pty Ltd and not the accused;
(e)there was an exhibit tendered by the prosecuting authority that showed planning consultants acting for the business were instructed by Pearl Asset Pty Ltd;
(f) there was an exhibit tendered by the prosecuting authority dated 17 April 2009, sent to them from the solicitor for Pearl Asset Pty Ltd specifying that he acted for Pearl Asset Pty Ltd as trustee for the Beydoun Family Trust No 2 and that the Appellant was the sole director of Pearl Asset Pty Ltd, which letter pre-dates the offence dates of 2, 3 and 5 May 2009; and
(g)the prosecuting authority put forward no positive evidence to show that the Appellant operated the business as a partner in his personal capacity.
1A.An error of law and fact in that the Magistrate found that the dates of the offences did not constitute an element of the offence when:
(a)the prosecuting authority expressly applied and were granted leave to amend the prosecution notice to change the date of Charge 4 (Prosecution Notice numbers 10 34324 and 10 34325) from 9 September 2009 to 3 September 2009;
(b)the Magistrate relied upon evidence from Beydoun and the Appellant that there was a course of conduct over a period of time, even though the dates of that conduct were not provided;
(c)the prosecuting authority did not elect to prosecute for a continuing offence over a period of time or a range of dates, but elected to specify an offence that took place on different dates; and
(d)the evidence relied upon by the prosecuting authority was dated photographs specifying when the alleged offences had taken place.
2.An error of law and fact in that the Magistrate found that the premises were a restaurant notwithstanding that the Magistrate accepted the statutory definition of restaurant specified that takeaway food could only be a minor part of the business if it was to be a restaurant, when:
(a)the evidence of Beydoun, Akkach and Eley (the co‑director of Pearl Asset Pty Ltd) was that the takeaway formed the predominant portion of the business and that the business also operated a retail and wholesale operation selling Lebanese pastries, which evidence was not referred to or discredited by the Magistrate;
(b)the evidence in chief of Spencer, the prosecuting authorities planning officer, was that he had formed the view that the business was a restaurant based on the number of tables and chairs in the premises, and made no mention of the takeaway sales undertaken by the business; and in cross examination confirmed that he had been to the premises 3 times, for 15 minutes the first time when there were no patrons and 2 further times for 5 minutes and he confirmed that he had never entered the kitchen to see if any takeaway food was being prepared and never made any enquiry as to what amount of takeaway food was prepared by the business;
(c)other witnesses for the prosecuting authority gave evidence that they had seen takeaway food being sold at the premises and they had in fact purchased Lebanese pastries to consume of the premises, but had no evidence to offer about the amount of takeaway sales the business made;
(d)the Magistrate concluded that it could be inferred that Spencer had formed the view that takeaway was only a minor part of the business as he had concluded the business was operating as a restaurant, notwithstanding his admission that he did not know what proportion of takeaway food was prepared and his admission that he had made no enquiries about the proportion of takeaway food that was prepared and not even address his mind to the issue; and further
(e)the Magistrate concluded that the Council made a decision that the premises was being operated as a restaurant, based on Spencers reports which made no reference to takeaway food preparation, and that the opinion of the Council was conclusive, and the conclusiveness of that opinion was in effect binding upon the accused as a finding of fact for the purposes of the trial, without any right on the accused to challenge that opinion on a factual basis.
3.The Magistrate made an error of law by failing to give adequate reasons because:
(a)the Magistrate did not state which part of the sentence was a daily penalty;
(b)the Magistrate did not adequately state the factual basis for the sentence passed.
4.The Magistrate made an error of law because the sentence was manifestly excessive.
Particulars
The sentence was not commensurate with the seriousness of the offences, taking into account:
(a)the circumstances of the offences and in particular that the offences were not continuing offences but offences occurring on 2, 3 and 5 May 2009.
(b)the mitigating factors and in particular:
(i)the Appellant's explanation given for the offending during the plea of mitigation; and
(ii)the lack of need for specific deterrence.
Appendix 2 - Mr Akkach's grounds of appeal
Mr Akkach's grounds of appeal are:
1.An error of law and fact in that the Magistrate found that the premises were a restaurant notwithstanding that the Magistrate accepted the statutory definition of restaurant specified that takeaway food could only be a minor part of the business if it was to be a restaurant, when:
(a)the evidence of Beydoun, Akkach and Eley (the co‑director of Pearl Asset Pty Ltd) was that the takeaway formed the predominant portion of the business and that the business also operated a retail and wholesale operation selling Lebanese pastries, which evidence was not referred to or discredited by the Magistrate;
(b)the evidence in chief of Spencer, the prosecuting authorities planning officer, was that he had formed the view that the business was a restaurant based on the number of tables and chairs in the premises, and made no mention of the takeaway sales undertaken by the business; and in cross examination confirmed that he had been to the premises 3 times, for 15 minutes the first time when there were no patrons and 2 further times for 5 minutes and he confirmed that he had never entered the kitchen to see if any takeaway food was being prepared and never made any enquiry as to what amount of takeaway food was prepared by the business;
(c)other witnesses for the prosecuting authority gave evidence that they had seen takeaway food being sold at the premises and they had in fact purchased Lebanese pastries to consume of the premises, but had no evidence to offer about the amount of takeaway sales the business made;
(d)the Magistrate concluded that it could be inferred that Spencer had formed the view that takeaway was only a minor part of the business as he had concluded the business was operating as a restaurant, notwithstanding his admission that he did not know what proportion of takeaway food was prepared and his admission that he had made no enquiries about the proportion of takeaway food that was prepared and not even address his mind to the issue; and further
(e)the Magistrate concluded that the Council made a decision that the premises was being operated as a restaurant, based on Spencers reports which made no reference to takeaway food preparation, and that the opinion of the Council was conclusive, and the conclusiveness of that opinion was in effect binding upon the accused as a finding of fact for the purposes of the trial, without any right on the accused to challenge that opinion on a factual basis.
2.An error of law and fact in that the Magistrate found that the dates of the offence did not constitute an element of the offence when:
(a)the prosecuting authority expressly applied and were granted leave to amend the prosecution notice to change the date of Charge 4 from 9 September 2009 to 3 September 2009;
(b)there was no evidence led that the accused breached s.218 of the Planning and Development Act 2005 on 3 September 2009;
(c)the Magistrate relied upon evidence from Beydoun and the Appellant that there was a course of conduct over a period of time, even though the dates of that conduct were not provided;
(d)the prosecuting authority did not elect to prosecute for a continuing offence over a period of time or a range of dates, but elected to specify an offence that took place on specific dates;
(e)prosecuting authority witnesses were unable to provide any details or specific dates about any alleged breach of the Planning and Development Act 2005, save that Lara Bloxham gave evidence that on 9 September 2009 she saw 3 people sitting outside the premises with takeaway coffee cups and she took a photograph of that incident; and
(f)the evidence relied upon by the prosecuting authority was dated photographs specifying when the alleged offences had taken place.
3.The Magistrate made an error of law by failing to give adequate reasons because:
(a)the Magistrate did not state which part of the sentence was a daily penalty;
(b)the Magistrate did not adequately state the factual basis for the sentence passed.
4.The Magistrate made an error of law because the sentence was manifestly excessive.
Particulars
The sentence was not commensurate with the seriousness of the offences, taking into account:
(a)the circumstances of the offences and in particular that the offences were not continuing offences but offences occurring on 2, 3 and 5 May 2009.
(b)the mitigating factors and in particular:
(i)the Appellant's explanation given for the offending during the plea of mitigation; and
(ii)the lack of need for specific deterrence.
Appendix 3 - Pearl Asset's Grounds of Appeal
Pearl Asset's grounds of appeal are:
1.An error of law and fact in that the Magistrate found that the premises were a restaurant notwithstanding that the Magistrate accepted the statutory definition of restaurant specified that takeaway food could only be a minor part of the business if it was to be a restaurant, when:
(a)the evidence of Beydoun, Akkach and Eley (the co‑director of Pearl Asset Pty Ltd) was that the takeaway formed the predominant portion of the business and that the business also operated a retail and wholesale operation selling Lebanese pastries, which evidence was not referred to or discredited by the Magistrate;
(b)the evidence in chief of Spencer, the prosecuting authorities planning officer, was that he had formed the view that the business was a restaurant based on the number of tables and chairs in the premises, and made no mention of the takeaway sales undertaken by the business; and in cross examination confirmed that he had been to the premises 3 times, for 15 minutes the first time when there were no patrons and 2 further times for 5 minutes and he confirmed that he had never entered the kitchen to see if any takeaway food was being prepared and never made any enquiry as to what amount of takeaway food was prepared by the business;
(c)one witnesses for the prosecuting authority gave evidence that he had seen takeaway food being sold at the premises and they had in fact purchased Lebanese pastries to consume of the premises, but had no evidence to offer about the amount of takeaway sales the business made;
(d)the Magistrate concluded that it could be inferred that Spencer had formed the view that takeaway was only a minor part of the business as he had concluded the business was operating as a restaurant, notwithstanding his admission that he did not know what proportion of takeaway food was prepared and his admission that he had made no enquiries about the proportion of takeaway food that was prepared and not even address his mind to the issue; and further
(e)the Magistrate concluded that the Council made a decision that the premises was being operated as a restaurant, based on Spencers reports which made no reference to takeaway food preparation, and that the opinion of the Council was conclusive, and the conclusiveness of that opinion was in effect binding upon the accused as a finding of fact for the purposes of the trial, without any right on the accused to challenge that opinion on a factual basis.
2.An error of law and fact in that the Magistrate found that the dates of the offence did not constitute an element of the offence when:
(a)the prosecuting authority expressly applied and were granted leave to amend the prosecution notice to change the date of Charge 4 from 9 September 2009 to 3 September 2009;
(b)there was no evidence led that the accused breached s.218 of the Planning and Development Act 2005 on 3 September 2009;
(c)the Magistrate relied upon evidence from Beydoun and the Appellant that there was a course of conduct over a period of time, even though the dates of that conduct were not provided;
(d)the prosecuting authority did not elect to prosecute for a continuing offence over a period of time or a range of dates, but elected to specify an offence that took place on specific dates;
(e)prosecuting authority witnesses were unable to provide any details or specific dates about any alleged breach of the Planning and Development Act 2005, save that Lara Bloxham gave evidence that on 9 September 2009 she saw 3 people sitting outside the premises with takeaway coffee cups and she took a photograph of that incident; and
(f)the evidence relied upon by the prosecuting authority was dated photographs specifying when the alleged offences had taken place.
3.The Magistrate made an error of law by failing to give adequate reasons because:
(a)the Magistrate did not state which part of the sentence was a daily penalty;
(b)the Magistrate did not adequately state the factual basis for the sentence passed.
4.The Magistrate made an error of law because the sentence was manifestly excessive.
Particulars
The sentence was not commensurate with the seriousness of the offences, taking into account:
(a)the circumstances of the offences and in particular that the offences were not continuing offences but offences occurring on 9 September 2009.
(b)the mitigating factors and in particular:
(i)the Appellant's explanation given for the offending during the plea of mitigation; and
(ii)the lack of need for specific deterrence.
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