Chen v City of Stirling
[2014] WASC 183
•29 MAY 2014
CHEN -v- CITY OF STIRLING [2014] WASC 183
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 183 | |
| Case No: | SJA:1080/2013 | 19 NOVEMBER 2013 | |
| Coram: | LE MIERE J | 29/05/14 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | QIN CHEN CITY OF STIRLING |
Catchwords: | Appeal Whether fine was manifestly excessive |
Legislation: | Criminal Appeals Act 2004 (WA), s 9(2) Planning and Development Act 2005 (WA), s 218(a) Sentencing Act 1995 (WA), s 40(5) |
Case References: | Dinsdale v The Queen (2000) 202 CLR 321 Lowndes v The Queen (1999) 195 CLR 665 Paolucci v Town of Cambridge [2013] WASC 50 Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 Weng Keong Chan v The Queen (1989) 38 A Crim R 337 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF STIRLING
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M D WHEELER
File No : PE 15839 of 2012
Catchwords:
Appeal - Whether fine was manifestly excessive
Legislation:
Criminal Appeals Act 2004 (WA), s 9(2)
Planning and Development Act 2005 (WA), s 218(a)
Sentencing Act 1995 (WA), s 40(5)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr W N Burg
Respondent : Mr D P Gillett
Solicitors:
Appellant : Slater & Gordon
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
Lowndes v The Queen (1999) 195 CLR 665
Paolucci v Town of Cambridge [2013] WASC 50
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81
Weng Keong Chan v The Queen (1989) 38 A Crim R 337
1 LE MIERE J: The appellant and her ex-husband, Mr Chow, were each convicted of the offence that between 3 March 2011 and 23 January 2012 at Lot 5, 835 Beaufort Street, Inglewood, within the district of the City of Stirling on land zoned mixed use under the City of Stirling Local Planning Scheme No 3 they carried out development without first having applied for and obtained the planning approval of the council under pt 9 of the scheme and hence contravened the scheme contrary to Planning and Development Act 2005 (WA) s 218(a). The appellant and Mr Chow were each sentenced to an overall penalty of $36,600, made up of a fine of $20,000 and a daily penalty of $50 per day for 332 days, totalling $16,600. The appellant now applies to this court for leave to appeal against that sentence.
Grounds of appeal
2 There is only one ground of appeal - that the fine was manifestly excessive having regard to all the circumstances.
Legal principles
3 The principles according to which an appellate court may interfere with a discretionary judgment by a sentencing judge are well established. An appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: Lowndes v The Queen (1999) 195 CLR 665 [15].
4 A claim that a sentence is manifestly excessive depends on an inference of error arising from the sentence imposed. It does not depend on express error in a sentencing judge's reasons: Dinsdale v The Queen (2000) 202 CLR 321, 324 - 325. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender: Weng Keong Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ, Wallace and Franklyn JJ).
5 In Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 Hasluck J made the following observation in relation to penalties for planning offences:
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 [74].
6 In Paolucci v Town of Cambridge [2013] WASC 50 Edelman J recently considered a number of decisions imposing penalties for offences in breach of planning legislation. His Honour concluded that his examination of the cases revealed that there is some difficulty in ascertaining a clear range of penalties for such offences. His Honour observed that this is unsurprising due to:
(i) the vastly different circumstances in which the offences can occur;
(ii) the different periods over which the offending can occur and the increased penalty for longer periods which results from imposition of daily penalties;
(iii) the date when the offences occurred and when the sentencing took place; and
(iv) differences in some of the legislative provisions.
His Honour further observed that there is a considerable difference between the penalties which are imposed upon corporate offenders and individual offenders, which reflects s 40(5) of the Sentencing Act 1995 (WA) which makes a body corporate liable to a fine that is five times the maximum that could be imposed on a natural person convicted of the offence.
Outline of offence
7 The appellant and Mr Chow operated a business from the premises from sometime before March 2011. The magistrate described the business as providing paid sexual services to clients or, to use the words of common parlance, as a brothel. That use of the premises was prohibited under the Town Planning Scheme. The City told Mr Chow that it knew sexual services were being provided on the premises and it should stop. It did not stop. The magistrate found that the appellant 'may have been a silent partner' but 'she attended one of the meetings at [the premises] and was inevitably aware of the City of Stirling's concerns re paid sexual activity ie prostitution, on the premises. She did nothing. The business continued'.
Appellant's contentions
8 The appellant says that the magistrate was informed of the relevant mitigating and aggravating factors bearing on the matter. The materials before his Honour regarding the appellant were the following:
(a) the appellant was divorced from Mr Chow;
(b) the appellant was living as a single mother with two children;
(c) the appellant had a boyfriend at the time of the conviction however she has since separated from that boyfriend.
The appellant acknowledged that the magistrate took into account all matters that might reasonably have been relevant to the exercise of the sentencing discretion. The appellant says that the same sentence was imposed on the appellant and Mr Chow, although the magistrate acknowledged that the appellant may have been a silent partner.
9 The appellant submitted that the magistrate gave insufficient weight to the personal factors mitigating the appellant's culpability, that there is a disparity in the fine and penalty imposed on the appellant in light of her personal antecedents and the court should have imposed a lesser fine because it was clear the appellant had limited means to pay the substantial penalty imposed. In conclusion the appellant says that notwithstanding the magistrate's correct enunciation of principle, the effective sentence imposed was so severe as to breach the first limb of the totality principle.
Consideration
10 In determining the appropriate penalty the magistrate found, and it is not challenged on appeal, that:
(a) the offence was commercial in that the business the subject of the prosecution was being operated for profit;
(b) the appellant continued to operate the business for as long as possible;
(c) the business being operated by the appellant could never have been approved or carried out legitimately; and
(d) the offence was commercial in nature and the appellant was determined to continue the unlawful use despite having been put on notice of the offence.
11 The respondent submits, and I accept, that the offence of which the appellant was convicted represented a flagrant breach of the City's planning approval processes and occurred without any credible explanation and in circumstances where the appellant was motivated by commercial considerations and a desire for personal advantage. Accordingly, the magistrate was correct to impose a substantial head penalty as well as daily penalties.
12 The magistrate expressly directed himself that he had to take into account the accused's personal circumstances but observed:
I also have to take into account … the business kept going as long as it possibly could until it couldn't anymore, the actions of the City, because of the commercial nature of the determination to continue, the determination not to cease, and appreciating that both parties - I have to look at the overall penalty because they're both separately charged; they're not together anymore, and I have to look at it as an overall penalty.
13 The head penalty imposed of $20,000 is 10% of the maximum head penalty. The daily penalty imposed of $50 per day for each day of the 332 days the offence continued is 0.2% of the maximum available daily penalty.
14 In all the circumstances, I am not persuaded that the sentence imposed was manifestly excessive.
Conclusion
15 Leave is required for each ground of appeal. The court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA) s 9(2). I am not satisfied that the appellant's ground of appeal has a reasonable prospect of succeeding. Leave to appeal will be refused as a result of which the appeal will be taken to have been dismissed.
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