Chong v The City of Mandurah
[2013] WASC 470
•19 DECEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CHONG -v- THE CITY OF MANDURAH [2013] WASC 470
CORAM: EDELMAN J
HEARD: 18 DECEMBER 2013
DELIVERED : 19 DECEMBER 2013
FILE NO/S: SJA 1081 of 2013
BETWEEN: KELVYN KIT WING CHONG
Appellant
AND
THE CITY OF MANDURAH
Respondent
FILE NO/S :SJA 1082 of 2013
BETWEEN :SUCCESS AUSTRALIA GROUP PTY LTD
Appellant
AND
THE CITY OF MANDURAH
Respondent
ON APPEAL FROM:
For File No : SJA 1081 of 2013
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE V C EDWARDS
File No :MH 3159 of 2012, MH 3160 of 2012
For File No : SJA 1082 of 2013
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE V C EDWARDS
File No :MH 3157 of 2012, MH 3158 of 2012
Catchwords:
Criminal law - Planning and development - Accused not present at trial - Discretionary refusal to adjourn proceedings - Whether discretion miscarried - Whether sentences manifestly excessive
Legislation:
Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Planning and Development Act 2005 (WA)
Sentencing Act 1995 (WA)
Result:
SJA 1081 of 2013
Leave to appeal against conviction on ground 1 and 2 refused
Leave to appeal on ground 3 granted
Appeal upheld in part
SJA 1082 of 2013
Leave to appeal against conviction on ground 1 and 2 refused
Leave to appeal on ground 3 granted but appeal dismissed
Appeal dismissed
Category: B
Representation:
SJA 1081 of 2013
Counsel:
Appellant: Mr B S Hanbury
Respondent: Mr D P Gillett
Solicitors:
Appellant: Evangel Legal Services
Respondent: McLeods Barristers & Solicitors
SJA 1082 of 2013
Counsel:
Appellant: Mr B S Hanbury
Respondent: Mr D P Gillett
Solicitors:
Appellant: Evangel Legal Services
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Dietrich v The Queen (1992) 177 CLR 292
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Eastough v Barry [2013] WASC 144
G T Homes Pty Ltd v Shire of York [2010] WASC 312
Goddard v City of Stirling [2009] WASC 28
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lasscock v Seidner [2013] WASC 94
Leary v The Queen [1975] WAR 133
Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Lyster v Kemp [2010] WASC 47
Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357
Myers v Myers [1969] WAR 19
Pallett v Paul [2007] WASC 290
Paolucci v Town of Cambridge [2013] WASC 50
R v Greer (1992) 62 A Crim R 442
Saad v Baron [2012] WASC 507
Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841
The State of Western Australia v Sillich [2011] WASCA 135; (2011) 43 WAR 285
Uxcel v City of Bayswater [2013] WASC 5
Table of Contents
Introduction
The history of the proceedings
29 May 2012: The charges brought
12 June 2012: The first failure of Mr Chong to appear
30 August 2012: Mr Chong obtains an adjournment of the trial
12 November 2012: Mr Chong fails to appear and the trial is adjourned a second time
4 December 2012: Mr Chong appears and another trial date is set
4 April 2013: Mr Chong is absent and his lawyer applies for a third adjournment of the trial
The learned magistrate's reasons for refusing the third adjournment
The s 55 procedure and the facts accepted
The appeals against conviction
No error or miscarriage resulted from the refusal of the adjournment
The appeals against sentence
The sentences imposed
The grounds of appeal against sentence
The sentence for the 'accommodation' offence was not manifestly excessive for Success Australia
The sentence for the 'accommodation' offence was manifestly excessive for Mr Chong
The sentences for the signage offences were not manifestly excessive for either Success Australia or Mr Chong
Conclusion
EDELMAN J:
Introduction
Mr Chong is the director of Success Australia Group Pty Ltd. Each of Mr Chong and Success Australia was convicted of two offences under the Planning and Development Act 2005 (WA) broadly involving (i) the use of premises (also described as 'the Land') in Halls Head for accommodation when those premises had been approved for massage therapy, and (ii) the display of a sign measuring 800 mm by 3 m reading 'Massage Adventure Relaxation Fitness and Spa'.
The charges were brought on 29 May 2012. Mr Chong and Success Australia failed to appear at the first directions hearing in the Magistrates Court in June 2012. Trial dates were set. But Mr Chong later obtained an adjournment of the trial. Mr Chong failed to appear for the adjourned trial for medical reasons which were known to him at the time the adjourned trial dates were set. New trial dates were set. The learned magistrate told Mr Chong to obtain legal advice promptly because the trial would not be adjourned again. Mr Chong not turn up for the trial because he had fractured a bone in his foot. He instructed a lawyer two days beforehand to seek another adjournment. The lawyer was instructed to withdraw if no adjournment was granted. In a discretionary decision which counsel for the appellants conceded was 'well and truly open'[1] the learned magistrate refused to adjourn the trial.
[1] Appeal ts 31.
Mr Chong and Success Australia were convicted in Mr Chong's absence under s 55 of the Criminal Procedure Act 2004 (WA).
Mr Chong and Success Australia appeal from their convictions on the basis that the learned magistrate's exercise of discretion miscarried in adjourning the trial or in relying on s 55 of the Criminal Procedure Act. For reasons explained in the conclusion of these reasons it is difficult to see why the appeal was brought at all. But counsel for the respondent did not rely upon the proviso. This appeal against conviction has no reasonable prospects of success. Leave is refused. The appeal against conviction is dismissed.
Mr Chong and Success Australia also appeal from their sentences for each offence. They say that their sentences were manifestly excessive. For the accommodation offences the penalties amounted, respectively, to a total of $52,500 and $26,500. For the signage offences Success Australia and Mr Chong were penalised $8,250 and $2,750. The maximum penalties for each offence were, respectively, $1,250,000 (corporation) and $250,000 (individual).
Only Mr Chong's appeal against sentence in relation to the combined fixed and daily penalties for the 'accommodation' offence should be allowed. The most significant reason for this is that the evidence accepted by the learned magistrate was that Mr Chong's assets, unlike those of Success Australia, are limited to $100,000. The penalty is more than a quarter of his total assets. It is his first offence which involved the provision of accommodation for staff at premises which were leased by the company of which he was a director, and his failure to ensure that his instructions were followed for the removal of beds seen by an officer of the City of Mandurah.
The history of the proceedings
29 May 2012: The charges brought
On 29 May 2012, Success Australia was charged by prosecution notice with two offences under s 218(a) of the Planning and Development Act 2005 (WA).
Mr Chong was charged with offences under the same provision. Section 180(2) of the Criminal Procedure Act 2004 (WA) provides that if 'a corporation is charged with an offence, every person who was an officer of the corporation at the time of the alleged offence may also be charged with the offence'.
The offences were as follows:
Success Australia Group Pty Ltd
(1)'Carried out a development namely the use of the Land for accommodation in breach of clause 6.2.1 of the City of Mandurah Town Planning Scheme No. 3'.
(2)'Carried out a development namely the display of an advertisement on the Land in breach of clause 6.2.1 of the City of Mandurah Town Planning Scheme No. 3'.
Mr Chong
(1)'Being an officer of a corporation, namely Success Australia Group Pty Ltd which corporation carried out a development namely the use of the Land for accommodation in breach of clause 6.2.1 of the City of Mandurah Town Planning Scheme No. 3'.
(2)'Being an officer of a corporation, namely Success Australia Group Pty Ltd which corporation carried out a development namely the display of an advertisement on the Land in breach of clause 6.2.1 of the City of Mandurah Town Planning Scheme No. 3'.
12 June 2012: The first failure of Mr Chong to appear
The first directions hearing was held on 12 June 2012. Mr Chong failed to appear. The learned magistrate said that he had received a letter from Mr Chong saying that Mr Chong pleaded not guilty and that he would be calling witnesses. Prosecuting counsel for the City of Mandurah explained that the facts and law were straightforward. He said that he would have two witnesses and that the matter should take two and a half hours at most.[2]
[2] ts 2 (12 June 2012).
The matter was adjourned to 30 August 2012 for trial.[3]
[3] ts 2 (12 June 2012).
In a surprising submission on this appeal, counsel for the appellants said that the learned magistrate should not have adjourned the matter for trial in more than 11 weeks. He submitted that such a short period before trial was 'unheard of'.[4] He submitted that the trial would take a whole day and no trial lawyer could have prepared for trial in that time, referring in particular to the possibility of interpreters being required for Mr Chong's witnesses.[5]
[4] Appeal ts 7.
[5] Appeal ts 8.
I do not accept that submission. The essence of the case against Mr Chong and Success Australia was that the leased premises had been used for accommodation. Prosecuting counsel was entirely accurate to say that it was a straightforward case. As I explain in the conclusion to these reasons it is not even clear what the defence would have been. Counsel for the appellants suggested 'any lawyer who conducts trials'[6] would have required more than 11 weeks to prepare for a trial involving issues as follows: [7]
you get into the question of the people that were sleeping in the beds having to give evidence about when they were sleeping and how long they were sleeping there, when they commenced to sleep there. These types of questions would be issues that would come up in the trial.
[6] Appeal ts 8.
[7] Appeal ts 9.
But whatever the defence was going to be, and whether or not it was what the appellant's counsel later described as a 'technical' argument[8] that sleeping in beds on the premises was not 'accommodation', and whether or not it would take an entire day as counsel for the appellants suggested, it defies imagination to understand how competent counsel would not be capable of preparing for such a case within, at most, one to two weeks and certainly within 11 weeks.
30 August 2012: Mr Chong obtains an adjournment of the trial
[8] Appeal ts 63.
On 30 August 2012, which was the date set for trial, the City of Mandurah arrived and was prepared for the trial to proceed. There was no transcript for 30 August 2012 provided on this appeal but the following matters appear from subsequent transcript.
Mr Chong applied for an adjournment of the trial by a Form 6 application.[9] Counsel for the City of Mandurah informed this Court that Mr Chong sought an adjournment in order to substitute other persons or entities as the accused and in order to obtain an interpreter for the hearing.[10]
[9] ts 3 (4 April 2013).
[10] Written submissions of the City of Mandurah [3].
The adjournment was granted. A new trial date was set for 12 November 2012.[11]
12 November 2012: Mr Chong fails to appear and the trial is adjourned a second time
[11] ts 2 (30 August 2012).
On 12 November 2012, Mr Chong did not appear. The interpreter who was provided for the trial was cancelled. [12]
[12] ts 3 (12 November 2012).
It appears from the transcript of 12 November 2012 that Mr Chong emailed the Magistrates Court saying that he was having surgery on 7 November 2012. It appears that this was supported by a letter from his surgeon dated 25 June 2012. That letter was not provided to this Court on the appeal. Nor was it apparent when that 25 June 2012 letter was provided to the learned magistrate. But it can be inferred that it was not provided to the learned magistrate prior to 30 August 2012. The learned magistrate observed at a later hearing that she had not been provided with the 25 June 2012 letter when the 12 November trial date was set on 30 August 2012. Nor was she told on 30 August 2012 by Mr Chong that surgery was planned for 7 November 2012.
At the 30 August 2012 hearing, or subsequently, Mr Chong had provided the Magistrates Court with his unavailable dates for trial. 12 November 2012 was not one of them.
The matter was adjourned to 4 December 2012. Counsel for the City of Mandurah told the Court that he would 'inform Mr Chong about section 55 [of the Criminal Procedure Act]'.[13]
4 December 2012: Mr Chong appears and another trial date is set
[13] ts 4 (12 November 2013).
On 4 December 2012, Mr Chong appeared at the directions hearing. It appears that no transcript of this directions hearing was made. However, the learned magistrate, on 4 April 2013, quoted from comments that she had made after listening to the recording of the 4 December 2012 hearing. Those comments are set out immediately below.
The learned magistrate told Mr Chong that he needed to get legal advice. Mr Chong said that he was going to obtain legal advice.[14] The learned magistrate told him to give that priority. Her Honour informed him: 'No further adjournments would be granted; that the matter will proceed on the 4th of April'. She reiterated that she was not going to vacate another date at the last minute. Again, she emphasised that the matter is going to go to trial and that it would proceed on 4 April 2013 no matter what Mr Chong might say about an adjournment.[15]
4 April 2013: Mr Chong is absent and his lawyer applies for a third adjournment of the trial
[14] ts 3 (4 April 2013).
[15] ts 3 (4 April 2013).
On 4 April 2013, the third date which had been set for a trial, Mr Chong did not attend the Magistrates Court. A lawyer attended on his behalf. Mr Chong's lawyer explained that she had been instructed only at 4.00 pm on 2 April 2013. She said that Mr Chong was unable to attend Court due to a fracture of a bone behind the toe bone. She provided medical reports and applied for another adjournment of the trial.[16] The injury had apparently been sustained around 13 March 2013.[17] The medical report provided to the learned magistrate said that Mr Chong was unwell and unable to attend work. The learned magistrate said that the medical certificate said nothing about him being unable to attend Court.[18]
[16] ts 2 (4 April 2013).
[17] ts 4 (4 April 2013).
[18] ts 4 (4 April 2013).
Counsel for the City of Mandurah made submissions to the learned magistrate which included the following:
(i)He had been contacted by a solicitor for Mr Chong on 24 March 2013 about the possibility of an adjournment. This was opposed.
(ii)On 2 April 2013, one clear working day before the trial, Mr Chong instructed a different firm.
(iii)One of the witnesses to be called by the City of Mandurah was the landlord of the premises. He was a medical practitioner who had been summonsed.[19]
[19] ts 5 (4 April 2013).
The learned magistrate explained that if she were to adjourn the proceedings to a mention the following week, as sought by Mr Chong's counsel, then a trial date would not be available until September 2013. This would be one year and three months after the first mention of this matter and more than a year after the original half-day trial was listed. Even if adjourning the matter to a Magistrates Court in Perth to deal with issues and possibly witnesses from Mandurah were, as counsel for the appellants suggested, a realistic option, the delay from the first listing would still have been substantial and there might not have been an earlier listing in any event.
The lawyer from the firm instructed by Mr Chong on 2 April 2013 explained to the learned magistrate that she was instructed to withdraw if an adjournment were not granted.[20]
[20] ts 11 (4 April 2013).
The learned Magistrate refused the adjournment application.
Convictions were entered pursuant to s 55 of the Criminal Procedure Act but the penalty hearing was adjourned to 19 April 2013.
The learned magistrate's reasons for refusing the third adjournment
The learned magistrate gave substantial reasons for refusing the third adjournment application on 4 April 2013. Her Honour relied on the following matters:
(i)There had been four trial dates set (including 4 April 2013) and in respect of each trial date Mr Chong had applied for an adjournment. In each adjournment application Mr Chong had given various reasons and on this occasion the two reasons for his application were that he was 'unwell and unable to attend work from and including today for six weeks' (dated 20 March 2013) and a report from a radiologist saying that he had fractured the bone behind his toe. The medical certificate did not indicate that he was unable to attend Court and sit behind his lawyer. Her Honour also observed that she had been told by Mr Chong's counsel that Mr Chong had, within the last two days, attended the office of his new lawyers to drop off documentation.
(ii)The 'second ground' was that Mr Chong had only given instructions to his current lawyer 'in the last couple of days'. On 4 December 2012, Mr Chong had been told by the Court, and a letter from counsel for the respondent, to obtain legal advice without delay. But although he corresponded with other solicitors, he had approached his current solicitor only two days prior to the trial. His current solicitor had also indicated that her principal had said that she would 'drag [Mr Chong] here if she had to' for the proposed mention hearing the next week, which indicated that Mr Chong would be able to attend Court the next week.
(iii)The injustice to the prosecution was that on at least three occasions (including 4 April 2013) the prosecution had attended with an interpreter at Mr Chong's request to assist two of Mr Chong's alleged witnesses. Later her Honour said that this occurred on four occasions.[21]
(iv)If the trial were adjourned again then it would not be heard until September 2013.[22]
[21] ts 10 (4 April 2013).
[22] ts 10 (4 April 2013).
Her Honour concluded that the potential injustice to Mr Chong would be that he would be denied the opportunity to defend himself from the prosecution because his lawyer had instructions to withdraw if an adjournment were not granted. But Mr Chong had been given ample opportunity to defend himself and the injustice to him was outweighed by the injustice to the prosecution.[23]
The s 55 procedure and the facts accepted
[23] ts 10 (4 April 2013).
After the adjournment was refused the learned Magistrate referred to the decision of Beech J in Saad v Baron[24] and explained that the absence of both Mr Chong and his lawyer (who had sought leave to withdraw) enlivened the procedure under s 55 of the Criminal Procedure Act 2004 (WA). That section provides as follows:
[24] Saad v Baron [2012] WASC 507.
55 No appearance by accused and no plea of guilty
(1)This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea.
(2)If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date, the court may ‑
(a)adjourn the charge; or
(b)hear and determine the charge in the accused’s absence.
...
(4)If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused's absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court ‑
(a)must presume, in the absence of evidence to the contrary ‑
(i)that the prosecution notice was signed by a person who was acting under section 20(3); and
(ii)that the person had the authority to sign the prosecution notice;
and
(b)may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.
(5)If under subsection (4) the court convicts the accused ‑
(a)the prosecutor must state aloud to the court the material facts of the charge; and
(b)section 129(4) applies; and
(c)in the absence of evidence to the contrary, the court must take as proved any facts so stated.
The learned magistrate heard the material facts read aloud by the prosecution, accepted those facts as proved, and entered a conviction under s 55.[25] The matter was adjourned for sentencing.
[25] ts 16 (4 April 2013).
The facts accepted were as follows.
Mr Chong is a lessee of premises in Halls Head. The land falls within the City of Mandurah town planning scheme number 3. In August 2010, the City of Mandurah approved a change in use from 'medical centre' to 'massage therapy'.
From December 2011, the City of Mandurah received complaints that the use of the land was not consistent with massage therapy. Those complaints continued up until the date of conviction, 4 April 2012.
On 14 December 2011, the manager of planning inspected the premises. She observed two double beds in two of the four rooms which had been reserved for 'consulting'. There were massage beds and reclining chairs but none of the other paraphernalia associated with massage such as massage tables, heating lamps, or certificates of accreditation of massage operatives.
The manager of planning left her calling card at the premises. She later received a call from Mr Chong who said that the reason for the double beds was that some of the clients could not access the massage tables and that some of the staff would finish work late and so they slept at the premises rather than returning to Perth.
Mr Chong was told by the manager of planning that (i) staff were not permitted to sleep on the premises and the beds had to be removed and (ii) signage on the premises had to be removed.
The signage on the premises was a black and yellow sign at the back of the premises. It was 800 mm by 3 m. It said 'Massage Adventure Relaxation Fitness and Spa'. The business name 'Massage Adventure' was registered to Success Australia.
On 24 January 2012, the manager of planning returned to the premises. She was accompanied by two detectives. There was no change in the room configuration. A female receptionist was in one of the double bedrooms. And a female was in bed in one of the other double bedrooms. An additional double bed was seen in one of the other massage rooms. The rooms also showed signs of occupation including bedding, personal hygiene matters, toiletries, suitcases and clothing on the floor.
The appeals against conviction
The appeals against conviction by Mr Chong and Success Australia allege that the magistrate erred in law or that there was a miscarriage of justice because
1.1… in proceeding to hear the matter in the absence of the appellants or the appellants' legal representative, the appellant was not able to provide any defence at all which was a serious injustice to the appellant.
1.2In determining that if the case was further adjourned that the injustice to the prosecution outweighed the injustice to the appellant the learned Magistrate did not consider the application of the appellant to adjourn according to law.
As counsel for the appellants accepted, these grounds of appeal are not independent. It is common ground that if the learned magistrate had properly exercised her discretion to refuse the adjournment then the s 55 procedure was enlivened and was open for the magistrate to apply it. This was a consequence of the instructions of counsel for Mr Chong to withdraw if an adjournment application were not granted.
No error or miscarriage resulted from the refusal of the adjournment
The following principles in relation to an application for an adjournment for a simple offence are established.[26] Those principles are as follows:
(i)Whether an adjournment should be granted is matter of discretion and it must be shown that the magistrate has erred in exercising discretion.[27] This invites consideration of the usual principles relevant to the exercise of discretion.[28]
(ii)Appeals brought against a refusal of an adjournment by a magistrate have failed in circumstances where the appellant was unable to establish that the refusal gave rise to an injustice.[29]
(iii)Where the refusal of an adjournment would result in serious injustice to one party an adjournment should be granted unless in turn this would mean serious injustice to the other party. [30]
(iv)It is fundamental to the administration of justice that an accused person must be given full opportunity to present his or her defence.[31]
(v)The fact that a defendant is unrepresented by a lawyer cannot of itself amount to a miscarriage of justice. The question must be whether it was fair to proceed in the circumstances.[32]
(vi)Adjournments are not available for the asking. It undermines the orderly disposal of the work of the courts when trials, particularly criminal trials, are adjourned unnecessarily.[33]
[26] Pallett v Paul [2007] WASC 290 [52] ‑ [55] (Hasluck J); Saad v Barron [2012] WASC 507 [21] ‑ [23] (Beech J); Lasscock v Seidner [2013] WASC 94 [20] ‑ [27] (Hall J); Eastough v Barry [2013] WASC 144 [17] (McKechnie J); Lyster v Kemp [2010] WASC 47 [54] ‑ [56] (Beech J).
[27] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon CJ, Evatt and McTiernan JJ).
[28] Lewis v The State of Western Australia [No 2] [2008] WASCA 155; (2008) 37 WAR 483 [40] (Hasluck J); Lyster v Kemp [2010] WASC 47 [56] (Beech J).
[29] Pallett v Paul [2007] WASC 290; Lyster v Kemp [2010] WASC 47.
[30] Myers v Myers [1969] WAR 19, 21 (Jackson J); Pallett v Paul [2007] WASC 290; Lyster v Kemp [2010] WASC 47.
[31] Leary v The Queen [1975] WAR 133, 138 (Jackson CJ, Lavan J, Jones J).
[32] Dietrich v The Queen (1992) 177 CLR 292.
[33] R v Greer (1992) 62 A Crim R 442, 448 (Kirby J).
In The State of Western Australia v Sillich,[34] Martin CJ (with whom Hall J agreed) made the following general remarks concerning adjournment in the context of an adjournment application pending an appeal:
There is a strong public interest in the timely disposition of all criminal cases, including criminal appeals. In most cases, those who are interested in the final resolution of a criminal case are not limited to the prosecutor and the accused. In addition to the public interest in the final resolution of serious criminal cases such as this, there will often be others with a specific and identifiable interest in the timely conclusion of the proceedings … Public resources provided to the prosecution and the court are also dissipated every time there is a late adjournment. In this sense, the interests of the parties are to be balanced with the effect of the adjournment on 'court resources and the competing claims by litigants in other cases awaiting hearing'.[35]
While these are important and weighty considerations, they will necessarily be subordinated to the interests of justice in a case in which it is established that the refusal of an adjournment would deprive an accused, or an appellant, of the opportunity to present a case which has a real prospect of success.
[34] The State of Western Australia v Sillich [2011] WASCA 135; (2011) 43 WAR 285, 293 [36] – [37].
[35] Sali v SPC Ltd[1993] HCA 47; (1993) 67 ALJR 841, 844 (Brennan, Deane & McHugh JJ).
In giving reasons for decision refusing the adjournment application, her Honour referred to many of these principles. Her Honour emphasised that 'the court needs to balance the prejudice and injustice to both parties in determining whether or not an application for an adjournment ought to be granted'.[36]
[36] ts 7 (4 April 2013).
In his primary submissions, counsel for the appellants apparently disputed these principles. His submission was that the appropriate principle to apply on appeal is not whether it was open to the learned magistrate to exercise her discretion in the way that she did (which he conceded that it was), but whether that exercise of discretion was 'incorrect'.[37] He accepted that the essence of his argument was that the learned magistrate had 'weighted' the factors involved in her discretion incorrectly.[38]
[37] Appeal ts 40.
[38] Appeal ts 44.
It would be enough to dismiss this application for leave to appeal as having no reasonable prospects of success on the basis that this submission finds no support in legal principle. But, for completeness, and to address the detail to which the appellants' counsel descended, each of the five particular objections to the learned magistrate's reasoning process is considered below.
The five particular objections in support of the ground that the learned magistrate erred in law, or there was a miscarriage of justice, were as follows.
(i)The learned magistrate erred by saying that the 4 April 2013 trial date was the fourth trial date. In fact, there had been three trial dates set and the first date was set in the absence of the appellants and only 10 weeks after the first directions hearing.[39]
(ii)The inconvenience to the prosecution was less than serious and certainly not significant. 'Any and all costs associated with the prosecution of the matter could be factored in the case against the appellants and there was nothing apparent that was beyond inconvenience'. [40]
(iii)No trial in the history of the proceedings was adjourned unnecessarily, the delay was not gross, and the delay was not attributable to the appellants to the extent relied upon by the learned magistrate.[41]
(iv)The prosecution should not have 'led evidence from the bar table as to the application to adjourn on the grounds of medical incapacity' nor should he have characterised the reason for Mr Chong's non‑attendance as 'pathetic at best'.[42]
(v)There was serious injustice to the appellants by the refusal of an adjournment but no serious injustice to the respondent by the grant of an adjournment.[43]
[39] Appellants' Submissions [26]-[30], [32].
[40] Appellants’ Submissions [31].
[41] Appellants’ Submissions [33]-[34], [37].
[42] Appellants’ Submissions [33]-[34], [37].
[43] Appellants’ Submissions [35].
As to submission (i), counsel for the appellants is correct that there had been only three trial dates set and not four. But this point was inconsequential in the context of her Honour's reasons. Her Honour mentioned the several trial dates twice in her reasons for refusing the adjournment. On the first occasion she said initially that three trial dates had been set, but then 'corrected' that to four dates. But her Honour was uncertain and she sought, and obtained, confirmation (incorrectly) from counsel for the City of Mandurah that there had been four trial dates.[44] Later when referring to the occasions on which the prosecution had attended Court with witnesses, her Honour said that it was three occasions, but later still said four occasions.[45] In the course of her Honour's reasons it was inconsequential whether it was three occasions or four that the prosecution had turned up ready for trial. The point of consequence, which prompted the learned magistrate to listen to the tape of the 14 December 2012 hearing, was that she had said to Mr Chong on 14 December 2012, in emphatic terms, that the case was going to go to trial on 4 April 2013 no matter what he might say about an adjournment.
[44] ts 7 (4 April 2013).
[45] ts 9 (4 April 2013).
Nor, as I have explained, is it of consequence that the trial was initially listed for 30 August 2012, which was 11 weeks after the first mention and three months after the prosecution notice. There was, and is, no apparent reason why this date was inappropriate for the trial. One of the reasons later professed by Mr Chong for adjourning this date was that he wanted to substitute other persons as the accused. No such application was ever made by Mr Chong or Success Australia.
As to submission (ii), I do not accept that the inconvenience to the prosecution was 'less than serious and certainly not significant'. An adjournment of the matter would have meant that the prosecution would have attended Court, with witnesses, for a trial on three occasions over seven months, only to have the trial, estimated for only two and a half hours, adjourned every time.
This submission also ignores the prejudice caused by any adjournment to other persons. There would have been prejudice to the persons who were making ongoing complaints about the premises in the failure to hear and decide the guilt of the appellants. There would have been prejudice to the prosecution witness who was a medical practitioner who had to attend by subpoena and would be required to attend again. And, as explained above, there would have been prejudice to Court resources and the competing claims by litigants in other cases awaiting hearing.
As to submission (iii), this is, again, effectively a complaint about the weight placed by the learned magistrate on various matters in the exercise of her discretion. No submission was made that the learned magistrate erred in relation to any particular comment concerning delay or the history of the proceedings. Her Honour did not find that previous trials had been unnecessarily adjourned. Nor did her Honour find that the delay was gross or that delay was attributable to the appellants to a particular extent. All these findings were open to her Honour. As I have mentioned, the matter which was central to her Honour's decision was the emphatic warning that she had given Mr Chong on 4 December 2012 about the trial going ahead on 4 April 2013, coupled with the lack of a substantive reason put on his behalf for his non‑attendance and failure to instruct lawyers who could represent him at a trial.
As to submission (iv), it is not relevant that the prosecution led evidence from the bar table as to the application to adjourn on the grounds of medical incapacity. Nor is it relevant that the prosecution characterised the reason for Mr Chong's non‑attendance as 'pathetic at best'. Only the first of these matters was relied upon to any extent by the learned magistrate when she mentioned that Mr Chong’s injury was a 'fracture of a bone behind the toe' (the learned magistrate using the words of Mr Chong's counsel).[46] But it mattered not whether the injury to Mr Chong's foot was a 'fracture of a bone behind the toe' or a 'fractured foot'. The essential point was that, as the learned magistrate observed, there was no evidence provided to the learned magistrate concerning why an injury to Mr Chong's foot meant that he was unable to attend Court.
[46] ts 8 (4 April 2013).
Counsel for the appellants submitted that the learned magistrate should have known that Mr Chong was unable to attend the trial because of the medical note, dated 20 March 2013 (more than two weeks before the trial date) which said that Mr Chong was unable to attend work for six weeks and because of the medical evidence that Mr Chong had fractured his foot. Neither that medical note, nor the medical evidence was available on appeal.
When counsel for the appellants was asked why a person could not attend Court on crutches, his submission was effectively that this was not possible in a case where the person might have been taking painkillers which is 'not the best way to appear in Court'.[47] But there was no evidence, nor any submission, before the learned magistrate on 4 April 2013 that Mr Chong was taking painkillers. Counsel also suggested that the learned magistrate should not have concluded that 'there would be very little need for him to be other than sitting in court and instructing his lawyers'.[48] It is true that, as counsel submitted, Mr Chong might have given evidence (although how his evidence would have been relevant to appeal counsel's postulated 'technical' defence concerning the meaning of 'accommodation' is not clear) but if that eventuality occurred, and if Mr Chong's foot injury were such as to prevent him from giving evidence then the trial could have been adjourned at that stage.
[47] Appeal ts 29.
[48] ts 8 (4 April 2013). See Appeal ts 39.
As to submission (v), this submission focusses in part upon the essential issue which is the balancing of the respective injustice to the parties and the administration of justice in the grant of an adjournment. But, as I have explained, this submission is based on a misunderstanding of legal principle. The balancing of the respective interests in the grant of an adjournment was a discretionary exercise for the learned magistrate to conduct. It is not for this Court to substitute a different decision simply because if a different conclusion were thought to be preferable.
The appropriate question is whether the conclusion reached by her Honour in the exercise of her discretion was open. As counsel for the appellants conceded,[49] it was 'well and truly open to her to refuse the application'.
[49] Appeal ts 31.
The assertion by the appellants that Mr Chong and Success Australia suffered serious injustice from the refusal to adjourn the proceedings ignores the fact that Mr Chong had been told on 4 December 2012, in emphatic terms that (i) he needed to get legal advice as a matter of priority; and (ii) the trial was going to go ahead on 4 April 2013 no matter what Mr Chong said about an adjournment. Any consideration of the injustice to Mr Chong and Success Australia in the refusal of the adjournment, and the consequential application of s 55 of the Criminal Procedure Act must also take into account that despite the strength of the warning on 4 December 2012:
(i)Mr Chong did not provide instructions to the lawyer who appeared for him on 4 April 2013 until 4.00 pm on 2 April 2013; and
(ii)Mr Chong failed to provide evidence which could satisfy the Court that he was unfit to attend Court.
Understood in this context, it was entirely open to the learned magistrate to conclude that the injustice to Mr Chong and Success Australia in refusing the adjournment was outweighed by the injustice to the prosecution and the administration of justice.
For completeness, I note that subsequent to the appellants' convictions, at the sentencing hearing, counsel for the appellants made submissions including that Mr Chong's counsel at the 4 April 2013 hearing had made an error in telling the learned magistrate that Mr Chong had dropped off documents to his lawyers within the two days prior to 4 April 2013. Counsel asserted that Mr Chong's lawyer on 4 April 2013 was an article clerk in her office and had made a mistake about the identity of the person dropping off the documents.[50] She also asserted that Mr Chong had been on crutches, and taking painkillers which affected his attention span. None of these matters was before the learned magistrate at the time of her decision. None of these matters was the subject of any affidavit evidence at the 19 April 2013 hearing. None of these matters was the subject of any affidavit evidence on this appeal. None of these matters was the subject of any application when raised by counsel for Mr Chong and Success Australia at sentencing. None was relevant to the sentencing hearing.
[50] ts 3 - 4 (19 April 2013).
The grounds of appeal against conviction have no reasonable prospects of success. Leave to appeal on all grounds against conviction is refused.
The appeal against conviction are dismissed.
The appeals against sentence
The sentences imposed
The section which was breached by Success Australia and Mr Chong, s 218(a) of the Planning and Development Act provides as follows:
218 Contravening planning scheme or conditions on development
A person who
(a)contravenes the provisions of a planning scheme
...
commits an offence.By s 223 of the Planning and Development Act and s 40(5) of the Sentencing Act 1995 (WA) the maximum penalties are as follows:
Corporation: $1 million and $125,000 per day.
Individual: $200,000 and $25,000 per day.
Success Australia and Mr Chong were sentenced to the following penalties:[51]
[51] ts 7 (12 June 2013).
The accommodation offence
Success Australia: $50,000 and $2,500 daily penalties (total for two days).
Mr Chong: $25,000 and $1,500 daily penalties (total for two days).
The signage offence
Success Australia: $7,500 and $750 (total for two days).
Mr Chong: $2,500 and $250 (total for two days).
The penalties were imposed as a joint total on Success Australia and Mr Chong, but apportioned in the manner indicated above under s 55 of the Sentencing Act 1995 (WA). At the sentencing hearing, counsel argued that the offences were not 'continuing' offences so that the two days of daily penalties sought by the prosecution should not be awarded. The learned magistrate rejected this submission and no ground, or submission, on appeal has been made in relation to this matter. The parties proceeded on the basis that the relevant number of days during which the offences continued was only the two days on 14 December 2011 and 24 January 2012 when the manager of planning inspected the premises. No submission was made that all the intermediate days should count for the purposes of calculating a daily penalty.
The grounds of appeal against sentence
The ground of appeal against sentence brought by each appellant was initially as follows:
3.The appellant seeks leave to appeal against sentence on the ground that the learned Magistrate imposed a sentence that was excessive.
3.1The fine imposed was excessive having regard to the circumstances.
Rule 65(2)(d) of the Criminal Procedure Rules 2005 (WA) provides that a ground of appeal against sentence must not merely allege that the sentence is excessive or inadequate.
After the lack of particularity of the appeal against sentence was raised with counsel for the appellants in oral argument, counsel for the appellants sought to amend the grounds of appeal to allege manifest excess. That amendment was properly not opposed. The appeal proceeded on the basis that the ground of appeal is that the sentences were manifestly excessive because they were outside the proper exercise of sentencing discretion having regard to the following:
(i)the maximum sentence prescribed by law for the offence;
(ii)the standards of sentencing customarily observed with respect to that offence;
(iii)the place which the criminal conduct occupies in the scale of seriousness of offences of that type; and
(iv)the personal circumstances of the offender which include the required statutory considerations under s 53(1) of the Sentencing Act 1995 (WA) of the means of the offender and the extent to which payment of the fine will burden the offender.
It is well established that a sentencing discretion can miscarry if, having regard to these four factors, implied error is revealed because the sentence is manifestly excessive.[52] But, in weighing these factors, 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 different manner.[53] It must be established that a sentence of the nature imposed could not have been reached by the Court in the exercise of proper sentencing discretion.[54]
The sentence for the 'accommodation' offence was not manifestly excessive for Success Australia
[52] Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); McDougall v The State of Western Australia[2009] WASCA 232 [12] - [13] (McLure P).
[53] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.
[54] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325 - 326 [6] (Gleeson CJ & Hayne J).
The first two factors mentioned above concern the maximum sentence prescribed by law for the offence and the standards of sentencing customarily observed for that offence. In this case, the penalty imposed by the learned magistrate as a proportion of the total penalty in relation to Success Australia was: head penalty (5%); daily penalty (2%). The size of the penalty imposed in this case was a small proportion of the total penalty.
As to range of sentences, in Paolucci v Town of Cambridge[55] I reviewed the range of penalties recognised and imposed in cases in this Court and the Court of Appeal considering planning and development offences. That review revealed a vast disparity in penalties. No clear range emerges from the cases, particularly because of the considerable differences between the circumstances of the offending, the timespan of the offending, and the language of the particular statute.[56]
[55] Paolucci v Town of Cambridge [2013] WASC 50 [74] ‑ [90].
[56] Paolucci v Town of Cambridge [2013] WASC 50 [95].
It is also relevant, especially when considering previous cases and penalties for offences under s 218(a) of the Planning and Development Act that 'a change in a maximum sentence by Parliament will sometimes be helpful where it is thought that the Parliament regarded the previous penalties as inadequate'.[57] In 2011, the maximum fixed rate penalty and maximum daily penalty were increased, respectively, fourfold and fivefold.[58] In the second reading speech of the amending legislation the Minister for Heritage referred to the then current maximum fixed penalty of $50,000 and said that the maximum penalty was increased as a result of public consultation where all bodies consulted agreed that higher penalties are necessary.[59]
[57] Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357, 372 [30] (Gleeson CJ, Gummow, Hayne & Callinan JJ).
[58] Heritage and Planning Legislation Amendment Act 2011 (WA) s 10.
[59] Hansard, Legislative Assembly, 17 November 2010, page 8974.
Counsel for the appellants relied on the decision of this Court in Goddard v City of Stirling.[60] In that case, Mr Goddard committed an offence of developing his home without the prior approval of the council contrary to s 218(a) of the Planning and Development Act. The value of the extensions proposed was $155,000. Mr Goddard cooperated with the authorities. Once the breach was discovered he pleaded guilty. He was fined $30,000. The penalty was upheld on appeal, although EM Heenan J said that the penalty was 'unusually high' and he would have 'expected perhaps a penalty in the range of $20,000 to $25,000 as being more consistent with the limited pattern which emerges from an examination of the authorities'.[61] His Honour held that the $30,000 penalty was not manifestly excessive in circumstances which included (i) that the breach was flagrant, and (ii) that Mr Goddard was motivated by a sense of self‑interest and personal advantage. [62]
[60] Goddard v City of Stirling [2009] WASC 28.
[61] Goddard v City of Stirling [2009] WASC 28 [26].
[62] Goddard v City of Stirling [2009] WASC 28 [15], [26].
There are two points to note in relation to Goddard.
First, it is a single decision and E M Heenan J did not suggest that the limited pattern of authorities revealed a clear range.
Secondly, as I have mentioned, the penalties under s 218(a) have been increased fourfold by the legislature since the time at which the offences were committed in Goddard.[63]
[63] See Goddard v City of Stirling [2009] WASC 28 [18].
On the other hand, the offence by Success Australia in this case occupies a lower point in the scale of offending in some respects. In addition to the absence of any other conviction of Success Australia, the learned Magistrate also accepted that:
(i)'the breaches were not of an obvious commercial nature', by which her Honour meant that there was no obvious profit to either Success Australia or Mr Chong from the breaches; [64]
(ii)the only aggravating feature was that Mr Chong and Success Australia did not take appropriate steps to ensure the beds were removed from the premises after first advised in December 2011;[65] and
(iii)Mr Chong had instructed a licensee to remove the beds after the first visit in December but he had failed to ensure that his instructions were followed.[66]
[64] ts 6 (12 June 2013).
[65] ts 6 (12 June 2013).
[66] ts 6 (12 June 2013).
As to the circumstances of Success Australia, although it had no previous convictions, its means are a significant factor. Counsel for Success Australia said during the sentencing hearing that Success Australia operates two massage parlours, two restaurants, a lunch bar, and an entertainment centre.[67] Success Australia was still trading despite accrued losses. In the transcript, prior to her Honour's sentencing remarks, there was also an acknowledgement by counsel for Success Australia and Mr Chong that the financial report of the year ended 30 June 2011 showed $966,000 of shares held by Success Australia in Point 88 Pty Ltd which were said to be concerned with the entertainment centre.[68] Counsel said, in response to a direct enquiry, that these shares had been gifted to Mr Chong's wife 'a few months ago' due to alleged marital tension.[69]
[67] ts 17 (19 April 2013).
[68] ts 18 (19 April 2013).
[69] ts 17 (19 April 2013).
Although counsel explained that Success Australia suffered a tax loss in the year 2010/2011 and that losses carried forward to the end of June 2011 were $340,000,[70] an open inference is that Success Australia has very substantial assets. If the gift by Success Australia, shortly before trial, of nearly a million dollars of its assets were a proper exercise of the power of its directors then it could only be inferred that Success Australia was in such a strong financial position in relation to its assets that it could afford to dissipate nearly a million dollars of value in a single gift. These assets are a very significant factor weighing in favour of a substantial penalty.
[70] ts 7 (12 June 2013).
In all the circumstances of this case, a penalty of $50,000 with $2,500 in daily penalties for Success Australia was not manifestly excessive.
The sentence for the 'accommodation' offence was manifestly excessive for Mr Chong
The same factors discussed above in relation to Success Australia also apply to Mr Chong with two significant differences.
First, as to the sentence imposed upon Mr Chong in comparison with the maximum sentence prescribed by law for the offence, Mr Chong's fixed penalty of $25,000 was 12.5% of the maximum penalty. His combined daily penalties of $1,500 were 6% of the statutory maximum. In contrast, as I have mentioned, Success Australia was penalised only 5% and 2% respectively. Mr Chong was penalised, as an officer of Success Australia, at nearly double the percentage of the maximum penalty, although the principal offender was Success Australia.
Secondly, on the findings of the learned magistrate and the evidence before her Honour, the means of Mr Chong were vastly more limited than the means of Success Australia. Although the issue of Mr Chong's means was not explored in detail, the information before her Honour was that his only asset was $100,000 of equity in his home. The penalty, on the information which her Honour accepted, amounted to a quarter of Mr Chong's entire assets.
There was information provided that Mr Chong was employed by Success Australia but no information which suggested that he had a substantial income, including in the three previous years in which Success Australia had run at a loss. Nor was there any information about the identity of the shareholders of Success Australia or the number of directors.
In these circumstances, the financial penalty imposed on Mr Chong was manifestly excessive for a first offence which effectively consisted of a failure to ensure that his instructions to the licensee to remove beds were followed.
Neither party submitted on appeal that the matter should be sent back for re-sentencing and, subject to any submissions on this point, I consider that I am in as good a position as the learned magistrate to re‑sentence. My preliminary view is that the appropriate penalty for this offence upon re‑sentencing of Mr Chong is a single fixed penalty of $5,000.
Counsel for the City of Mandurah submitted that it would not be appropriate, without a cross-appeal, to increase the apportioned part of the penalty for Success Australia even if it were concluded that the total penalty were appropriate but that the amount apportioned to Mr Chong were manifestly excessive. I am content to proceed on that basis. I will hear from counsel, if necessary, concerning the appropriate order in light of these reasons, but my preliminary view is that (i) the joint total penalty should be quashed, (ii) the same sentence should be imposed on Success Australia as that which had been apportioned of the joint total penalty and (iii) Mr Chong should be re-sentenced to a single penalty, with no daily penalty, of $5,000.
I stress that the factual basis for the re-sentencing of Mr Chong is strictly on the facts as found by the learned Magistrate at the sentencing hearing and not based on any further fact or inference. Counsel for the City of Mandurah did not submit that any further inference should be drawn.
The sentences for the signage offences were not manifestly excessive for either Success Australia or Mr Chong
In relation to the signage offence, the penalty as a proportion of the total penalty in each case was:
Success Australia: head penalty (0.75%); daily penalty (0.6%).
Mr Chong: head penalty (1.25%); daily penalty (1%).
As for the range of penalties, counsel for the City of Mandurah accepted that there was again no clear range for this offence. He did refer to the decision in Uxcel v City of Bayswater[71] in which the offence involved the appellant's failure to remove a sign which was 'low impact, temporary and solely visual'. The offence did not involve a commercial decision. A fine of $50,000 was found to be manifestly excessive. A fine of $5,000 was substituted.
[71] Uxcel v City of Bayswater [2013] WASC 5.
The total fines of $8,250 for Success Australia and $2,750 for Mr Chong in relation to the offence concerning the sign are very closely aligned to this penalty.
Even taking into account the nature of the signage offence, which counsel for the prosecution at sentencing properly conceded was 'quite low in the scale of things',[72] as well as the personal circumstances and means of Success Australia and Mr Chong, the penalty could not be said to be manifestly excessive. In respect of Success Australia, given the asset position of Success Australia which, as I have described, was such that Success Australia had the capacity to make gifts of nearly a million dollars shortly before trial, this penalty might even be regarded as lenient, especially in comparison with other non-serious offences involving companies under the penalty regime which applied before the 2011 amendments.[73]
[72] ts 7 (19 April 2013).
[73] See eg G T Homes Pty Ltd v Shire of York [2010] WASC 312.
Conclusion
None of the appellants' grounds for appeal against conviction has a reasonable prospect of success. Leave to appeal against conviction is refused and the appeals against conviction are dismissed.
In some respects it is also difficult to see why the appeal against conviction was brought. At the sentencing hearing, the counsel for the appellants (at that time) submitted that what had occurred was that Mr Chong had told the planning officer for the City of Mandurah that beds were on the premises and that staff at the massage parlour finish work late and[74]
there were concerns for their safety and difficulty in getting public transport back to their residence. Hence the beds were put in to accommodate the staff who work at the massage parlour … When the matter came to light, as I say, Mr Chong then inspected the premises and asked [the licensee] to get rid of the beds ... since all these matters have come to light and Success [Australia] and Mr Chong have been prosecuted, Mr Chong has received in principle approval from the council to convert the premises into a motel.
[74] ts 9 (19 April 2013).
Counsel for the appellants on this appeal submitted that if the appeal were allowed, and the convictions quashed, then a retrial might be conducted on the basis that the provision for the staff to sleep at the massage parlour was not 'accommodation'. He submitted that even lawyers sometimes slept in their offices. He accepted, however, that they did not usually do so in double beds. I might add that it is not usual for a lawyer to apply for approval to convert chambers into a motel.
Since there was little developed argument on this appeal in relation to how the appellants had any real prospects of success at trial I have not taken this matter into account in considering the exercise of the learned magistrate's discretion to refuse the adjournment. If the ground of appeal had reasonable prospects of success otherwise then this might have been decisive (see above [45]). Further, the lack of an obvious defence was not relied upon by the prosecution to raise the proviso[75] in this case and there might, in any event, have been questions concerning whether the proviso could apply if the error had consisted of a failure to allow an adjournment to permit accused parties to defend themselves.
[75] Criminal Appeals Act 2004 (WA) s 14(2).
The appeals against sentence in relation to the signage offences also have no reasonable prospect of success. Those appeals should be dismissed.
As to the appeals against sentence in relation to the accommodation offences, I will hear from the parties concerning the appropriate orders to give effect to the conclusion that the apportionment of the total penalty should not be disturbed in relation to that proportion which is to be borne by Success Australia, but that Mr Chong should be re‑sentenced to a penalty of $5,000.
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