Coote v Shire of Serpentine-Jarrahdale
[2022] WASC 326
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COOTE -v- SHIRE OF SERPENTINE-JARRAHDALE [2022] WASC 326
CORAM: ARCHER J
HEARD: 13 SEPTEMBER 2022
DELIVERED : 14 NOVEMBER 2022
FILE NO/S: SJA 1013 of 2022
BETWEEN: RONALD JOHN COOTE
Appellant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B MAHON
File Number : AR 11599 OF 2020
Catchwords:
Criminal law - Appeal against sentence - Claim of manifest excess - Turns on its own facts
Legislation:
Nil
Result:
Application for leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | W Vogt |
| Respondent | : | T L Beckett |
Solicitors:
| Appellant | : | Vogt Graham Lawyers |
| Respondent | : | McLeods Barristers & Solicitors |
Case(s) referred to in decision(s):
Al Hussein v Commissioner for Consumer Protection [2014] WASC 296.
Austrend Construction Pty Ltd v City of Swan [2017] WASC 67.
Ayton v City of Armadale [2020] WASCA 39.
Beydoun v City of Stirling [2015] WASC 25.
Caruso v Shire of Augusta - Margaret River [2016] WASC 379.
Chong v City of Mandurah [2013] WASC 470.
CJH v the State of Western Australia [2013] WASCA 139.
Director of the Public Prosecutions of the State of Victoria v Dalgliesh (A Pseudonym) [2017] HCA 41; (2017) 262 CLR 428.
Gaskell v The State of Western Australia [2018] WASCA 8.
Hunter v City of Joondalup [2016] WASC 424.
Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586.
JKL v The State of Western Australia [2012] WASCA 215.
Ninyette v Holmes [2015] WASC 287.
O'Malley v Shire of Northam [2020] WASC 429.
Paolucci v Town of Cambridge [2013] WASC 50.
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5.
Sgroi v R (1989) 40 A Crim R 197.
Strahan v Brennan [2014] WASC 190.
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81.
Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139.
Teissier v City of Rockingham [2014] WASC 158.
The State of Western Australia v Zhuang [2021] WASCA 56.
Trinder v Anderson (Unreported, WASC, Library No 960216, 24 April 1996).
Uxcel Pty Ltd v City of Bayswater [2013] WASC 5.
Wilson v The State of Western Australia [2010] WASCA 82.
ARCHER J:
Overview
On 14 December 2020, the appellant Mr Coote pleaded guilty in the Magistrates Court to using land without having obtained development approval, contrary to s 218(b) of the Planning and Development Act 2005 (WA). On 24 January 2022, the learned magistrate imposed a fine of $45,000 for the offence. This sum comprised $40,000 for the offence itself and a further $5,000 of daily penalties.
Mr Coote seeks leave to appeal against the sentence, alleging it was manifestly excessive. The application for leave to appeal was ordered to be heard at the same time as the appeal.
In its submissions, the respondent concedes that the fine was manifestly excessive.
For the reasons that follow, the appeal should be allowed.
Appeals from magistrates' decisions[1]
[1] This section reproduces or draws on my reasons in other judgments.
Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a sentence imposed in the Magistrates Court to be made on grounds including that the court imposed a sentence that was excessive.
Leave to appeal is required for each ground of appeal.[2] The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[3] This means that the ground is required to have a real, rational and logical prospect of succeeding.[4]
[2] Criminal Appeals Act s 9(1).
[3] Criminal Appeals Act s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[5] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[6]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
Principles relating to sentencing appeals
[5] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[6] Strahan [90].
Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in part 2 differs slightly from the framework in part 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under part 3 cannot automatically be applied to appeals under part 2.[7] There are, however, core principles that apply to appeals against sentence under both part 2 and part 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[8]
[7] Ninyette v Holmes [2015] WASC 287 [56(3)]. And see Technip Oceania Pty Ltd v Commonwealth Director of Public Prosecutions [2021] WASCA 139 [117].
[8] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette [59] ‑ [65]; Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)] (Mazza and Beech JJA).
The offence
The relevant facts were not in dispute before the learned magistrate.
Mr Coote is the sole director of RJC Communications & Civil Contracting Pty Ltd (RJC). RJC operated a cabling business from 413 Karnup Rd, Serpentine. The property is part of a larger block of land, which is zoned rural under the Shire of Serpentine-Jarrahdale Town Planning Scheme No. 2.[9]
[9] Transcript of sentencing proceedings in the Magistrates Court 24 January 2022 (Sentencing Transcript) page 3.
In March 2019, the shire investigated a complaint in relation to the use of the land for the cabling business. The inspection found that there was, among other things, an accumulation of dumped material, including building rubble on the land, and machinery for the business.[10]
[10] Sentencing Transcript page 3.
During an inspection on 9 April 2019, Mr Coote told the inspectors that he had been using the property for approximately 25 years. Mr Coote asserted that there were other properties in the area which were being used for similar unauthorised uses, but the shire officers did not agree.[11]
[11] Sentencing Transcript page 3. See also page 9.
In June 2019, during another site inspection, officers advised Mr Coote that RJC would need to apply for approval to use the land for the business. The business was a 'light industry use', which could only be carried out on the rural-zoned land with approval. Mr Coote told the shire officers that the registered proprietor (who would be required to sign the application) would likely refuse to sign the application. The registered proprietor was Mr Coote's father-in-law, and their relationship had broken down.[12]
[12] Sentencing Transcript pages 3 - 4.
While at the property, the shire officers asked Mr Coote about rubble which was being dumped on the property. Mr Coote said that the rubble was being brought to the property following jobs by RJC's business and that the rubble would then be taken away at some point in the future.
Thereafter, the shire continued asking Mr Coote to apply for approval of the use of the property.[13]
[13] Sentencing Transcript page 4.
On 21 August 2019, Mr Coote's wife submitted an application for development approval. The application was rejected (apparently on the same day[14]) because it was not signed by the registered proprietor. On 7 October 2019, the shire served a formal direction on RJC and Mr Coote in relation to the unlawful development of the property.[15]
[14] See the Chronology filed on 22 June 2022 page 5 and ts 20.
[15] Sentencing Transcript page 4.
In his plea in mitigation, Mr Coote said[16] that, following the rejection of his wife's application for approval (on 21 August 2019), he understood that he would likely be ordered to cease operating the cabling business on the premises. He said he 'began slowing down' its trade.[17] However, even on his version of events, he did not actually take any steps to do so until after the shire served the formal direction on 7 October 2019, over six weeks after the application was rejected.[18]
[16] The assertions referred to in this section were not challenged by the prosecution.
[17] Sentencing Transcript page 10.
[18] Sentencing Transcript page 10 and Chronology page 6.
Mr Coote asserted that by 16 December 2019, about two months after being served with the formal direction, he had completely ceased operating the cabling business and had begun negotiations with a third party for the purchase of the business.[19]
[19] Sentencing Transcript page 11.
On 17 December 2019, an officer of the shire telephoned Mr Coote and requested a meeting on the following day. Mr Coote informed the shire officer that RJC's business had ceased operations.[20]
[20] Sentencing Transcript page 5.
In December 2019, a third party took over cabling operations and moved the office and day-to-day running of the business to another site in the Shire of Serpentine-Jarrahdale. However, some of the plant and equipment remained on site.
Between December 2019 and August 2020, the shire requested further updates in relation to whether the property would be brought into compliance. During this period, Mr Coote remained the occupier of the site. Mr Coote would always respond in the same way, namely, that he was unable to sign the application due to the registered proprietor being required to sign it and that the shire should pursue the registered proprietor because the sole director and secretary of the registered proprietor had consented to, and assisted with, the developments.[21]
[21] Sentencing Transcript page 5.
An inspection on 11 May 2020 confirmed that vehicles, machinery and other equipment and materials relating to cabling operations were continuing to be stored at the site. As a result of the ongoing unlawful use of the property by Mr Coote, the shire commenced the prosecution.[22]
[22] Sentencing Transcript page 6.
Mr Coote asserted that all of the rubble was removed by November 2020.[23] PVC piping was still on the property as at the sentencing date.[24]
[23] Sentencing Transcript page 11.
[24] Sentencing Transcript page 19. During the appeal, counsel clarified that, in referring to cabling, he meant PVC piping - see ts 8 - 9.
The prosecution notice alleged that the offence occurred from 17 December 2019 to 6 August 2020. Accordingly, it related to the period of time after Mr Coote had ceased operating the business, but continued to store materials, equipment and rubble on the land, without the necessary approval. It appears this comprised:[25]
(a)a bobcat, which could have been transferred to another company of Mr Coote's (which had development approval);
(b)a small tip truck;
(c)PVC piping; and
(d)an unquantified amount of rubble.
[25] See the Appellant's Written Submissions [16.3].
Reference was made in the statement of agreed facts and during the sentencing proceedings to permanent structures on the land. These were not relevant to the offence. The magistrate expressly stated he had not taken into account the permanent structures in the sentencing exercise.[26]
[26] Sentencing Transcript page 25.
The sentencing
Mr Coote effectively pleaded guilty at the first reasonable opportunity.
Mr Coote did not adduce any evidence of his means, nor the extent to which a fine would be a burden. It was not suggested that he was of limited means.
Mr Coote did not have a criminal record. In his sentencing remarks, the magistrate noted that Mr Coote was of good character.[27]
[27] Sentencing Transcript page 23.
His Honour considered each of the four factors that the prosecutor had advanced:[28]
(a)whether the breach was inadvertent;
(b)whether there was any commerciality in committing the breach;
(c)the scale and impact; and
(d)the permanency of the breach.
[28] See counsel's submissions on pages 7 - 8 of the Sentencing Transcript.
In relation to the first factor, his Honour said he was 'prepared to accept that [Mr Coote] was led to believe, with some naivety, with respect, that all things were in good order'.[29] His Honour accepted that '[t]he initial stages were inadvertent'.[30]
[29] Sentencing Transcript page 23.
[30] Sentencing Transcript page 24.
His Honour made a number of observations in characterising the deliberateness of the conduct after Mr Coote had been advised that the use was unlawful (which encompassed the entire period of the charge). The observations were not entirely consistent. However, his Honour concluded:[31]
Whether the breach was flagrant or inadvertent, as I say, I'm dealing with it on the basis that it was initially inadvertent. It was then known to be a breach to Mr Coote. I'm prepared to accept it was being overwhelmed in the circumstances rather than ongoing, flagrant disregard for responsibility. It fits, I hope - and I will put it in a tidy fashion. It sits somewhere between the two, quite frankly, and I hope that's a fair way of looking at it.
[31] Sentencing Transcript page 25.
His Honour accepted that the offence occurred against the background of a difficult family situation.[32] That said, the information as to that went no further than that Mr Coote's relationship with his father-in-law (the owner of the land) had broken down.
[32] Sentencing Transcript page 25.
His Honour accepted that part of the charged period overlapped with the early stage of COVID. His Honour accepted that COVID created difficulties in relation to the availability of storage and the costs of storage. His Honour said, however, that this was a double-edged sword.[33] It appears that his Honour meant that, while it was mitigating that it was difficult to obtain reasonably priced storage, it also suggested that the financial benefit in not doing so was greater than it would otherwise have been, increasing the commerciality of non-compliance.
[33] Sentencing Transcript page 24.
In its submissions in the appeal, the respondent noted that the charged period commenced on 17 December 2019. It asserted that the impacts of the COVID-19 pandemic on Western Australia did not relevantly emerge until at least February 2020 or March 2020, so did not account for the initial part of the charge period.[34] Mr Coote did not dispute this.[35]
[34] Respondent's Submissions [5.6].
[35] ts 22.
It is important to note that the charged period of offending commenced on 17 December 2019, well after Mr Coote had been told the use was unlawful. Accordingly, while he may have been conducting the business over the years in the mistaken belief it was lawful, the offence for which he was being sentenced was committed after he knew it was not.
Having regard to matters pointed out by Martin CJ in Strahan v Brennan,[36] I consider that his Honour concluded as follows:
(a)Mr Coote commenced using the land unlawfully not realising it was unlawful.
(b)By the start of the period of the charge commenced (17 December 2019), Mr Coote knew that his conduct was unlawful.
(c)Mr Coote did not commit the offence (and continue to do so) because he was flagrantly ignoring the law. His family circumstances were difficult and COVID made it more difficult to obtain reasonably priced storage elsewhere. Mr Coote was overwhelmed by the circumstances.
(d)However, during the period of the charge, Mr Coote knew that his conduct was unlawful. Therefore, Mr Coote did not engage in the offence due to inadvertence.
[36] As noted earlier.
In relation to the other factors, his Honour said:[37]
When one looks to the second consideration, whether the breach was permanent or reversible, again, as so often the way, it cuts both ways. This was a reversible breach, but then, as I've already said, with the benefit of hindsight, Mr Coote should have took those urgent steps to reverse it - remove the items. It didn't happen. He can't turn the clock back, but it's a balancing exercise because balanced against that was that these particular issues I'm dealing with are not permanent issues. They were reversible, and as far as I can see, those matters have been dealt with.
The scale and impact of the breach, I have to say I take the view is towards the lower end of the scale in this matter, putting it fairly and squarely. The extent of the commercial benefit arising from the breach is rather more difficult, and, of course, I can never speculate. I do note they were difficult times. As I say, I remember well the impact of COVID on storage and the like, and we've got a situation where it's the tender handing over of the business, often in difficult circumstances.
One is trying to keep the wheels on the deal and balancing against that an ongoing situation where one remains in breach. It's a balancing exercise. Of its necessity, it contains a degree of commerciality, it has to, but I accept that this is not a top-end matter.
[37] Sentencing Transcript pages 25 - 26.
The magistrate fined Mr Coote $45,000. This sum comprised $40,000 for the offence itself and a further $5,000 of daily penalties.
His Honour described the daily penalty component as 'extremely moderated'.[38] He said:[39]
[N]ot to impose a daily penalty, in my view, would not be an appropriate outcome. It marks in a very modest way compared to the maximums available here, but it's important that when a breach does come to light, that urgent steps are taken, however, is moderated significantly as I have approached it on the overwhelmed basis, rather than a flagrant disregard basis.
[38] Sentencing Transcript page 26.
[39] Sentencing Transcript page 26 - 27.
Ground of appeal
Mr Coote's sole ground of appeal is that the sentence was manifestly excessive. An assertion that a sentence is manifestly excessive is an assertion of implied error. To succeed, the appellant must demonstrate that the disposition is unreasonable or plainly unjust.[40]
A sentence must correspond to the seriousness of the offence
[40] Gaskell [127(1)] (Mazza and Beech JJA).
A sentence imposed on an offender must be commensurate with the seriousness of the offence.[41] The seriousness of an offence must be determined by taking into account:[42]
(a)the statutory penalty for the offence; and
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
(c)any aggravating factors; and
(d)any mitigating factors.
Imposing a fine[43]
[41] Sentencing Act 1995 (WA) s 6(1).
[42] Sentencing Act s 6(2).
[43] This section reproduces or draws on my reasons in other judgments.
If a court decides to fine an offender, the court must, as far as is practicable,[44] take into account the means of the offender and the extent to which payment of the fine will burden the offender. This is subject to the requirement that a sentence imposed on an offender must be commensurate with the seriousness of the offence.[45] This means that:[46]
whilst a court must take into account the means of an offender in considering the amount of any fine that exercise should not result in a fine which is not commensurate with the seriousness of the offence. In some cases it may be necessary to impose a fine that is difficult for an offender to pay or even beyond the means of an offender, if a fine of any lesser amount would not be commensurate with the seriousness of the offence. This assumes that no other disposition is reasonably open.
However, the seriousness of an offence will rarely dictate the precise amount of an appropriate fine. There will usually be a range of fines that will be open to be imposed. It is in this context that the means of the offender and the extent of any burden on the offender will come into play. Where an offender is of very limited means and the burden of a fine would be very onerous, those factors will justify the imposition of a fine towards the lower end of the range that would be appropriate for an offence of the seriousness being dealt with by the court.
[44] A court may fine an offender even though it has been unable to find out about these matters - Sentencing Act s 53(2).
[45] Sentencing Act s 53(1). See also Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586 [25] ‑ [26].
[46] Hussaini [25] - [26].
In having regard to the burden that a fine may impose on an offender, the court should not overlook the fact that a fine is a punishment and is intended to be a burden on the offender, to give effect to appropriate sentencing principles of punishment and general and personal deterrence.[47]
[47] Al Hussein v Commissioner for Consumer Protection [2014] WASC 296 [16].
In Sgroi v R,[48] Malcolm CJ, with whom Rowland J agreed said:
The question whether the amount of a fine is within the range of a sound discretionary judgment is to be determined in the same manner as the same question when asked with respect to a sentence of imprisonment, save that in the case of a fine considerations of the offender's financial means or capacity are relevant in determining the amount of a fine which will constitute punishment proportionate to the gravity of the offence in the light of the circumstances under which it was committed, the antecedents of the offender and, where appropriate the objective of general deterrence.
General principles in relation to planning offences
[48] Sgroi v R (1989) 40 A Crim R 197, 201.
In Swan Bay Holdings Proprietary Ltd v City of Cockburn,[49] Hasluck J said:[50]
the presence of the retrospective approval and the fact (as evidenced by the approval) that the development could be regarded as a permitted use within the light industrial area cannot be treated as a mitigating factor weighing so decisively in favour of the appellant that it displaced the need for a significant penalty. Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also upon a pervasive culture of general observance and respect for the underlying communal purpose. This requires that breaches of the law be underpinned by significant penalties in order to deter infringements.
That being so, it would be misguided to allow certain unauthorised developments to proceed with scarcely any censure simply because they were thought to be compatible with the zoning because this would reduce planning approvals to the level of a mere formality. Moreover, in such a case the tendency to non-observance can be insidious because, as indicated by the circumstances of the present case, the unauthorised work may pass unnoticed.
Determining whether a sentence is manifestly excessive[51]
[49] Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81.
[50] Swan Bay Holdings [74] - [75]. See also Caruso v Shire of Augusta - Margaret River [2016] WASC 379 [88] - [89].
[51] This section and the next reproduce or draw on my reasons in other judgments.
In determining whether or not a sentence is manifestly excessive, the sentence should be examined having regard to the maximum penalty for the offence, sentences imposed in other cases for similar offences, the gravity of the criminal conduct on the scale of seriousness of offences of that type, and the personal circumstances of the offender.[52]
[52] Gaskell [127(2)] (Mazza and Beech JJA).
If there are no directly comparable cases, the court is not precluded from deciding that an individual sentence is manifestly excessive. It just means that there are no directly comparable cases to provide a yardstick against which to assess the sentence. Previous sentences are only ever one indicator in the assessment.[53]
The relevant considerations[54]
Maximum penalty
[53] See, in the context of manifest inadequacy and the totality principle, The State of Western Australia v Zhuang [2021] WASCA 56 [112] - [113].
[54] The legal principles in this section reproduce or draw on my reasons in other judgments.
Prior to 2011, the maximum penalty for an offence under s 218(b) of the Planning and Development Act was a fine of $50,000 for an individual and, in the case of a continuing offence, a further fine of $5,000 for each day during which the offence continues. For corporate offenders, the maximum penalty for the offence was $250,000 and the maximum daily penalty was $25,000 per day.[55]
[55] Planning and Development Act (pre-amendment) s 223 and Sentencing Act1995 (WA) s 40(5).
In 2011, the maximum penalty for individuals was increased,[56] automatically increasing the penalty for corporations.[57] For individuals, the maximum was increased from $50,000 to $200,000, and the daily penalty was increased from $5,000 to $25,000.[58] For corporate offenders, the maximum penalty for the offence was increased to $1 million and the maximum daily penalty to $125,000 per day.[59]
[56] Heritage and Planning Legislation Amendment Act2011 (WA) s 10.
[57] Sentencing Act s 40(5).
[58] Planning and Development Act s 223.
[59] Planning and Development Act s 223; Sentencing Act1995 (WA) s 40(5).
In JKL v The State of Western Australia, Murphy JA said (citations omitted):[60]
An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased… It requires the court to regard offences of that kind more seriously in the future… It is the duty of the court to give effect to the policy behind the change
[60] JKL v The State of Western Australia [2012] WASCA 215 [98] (Murphy JA).
The increased maximum penalty reflects the seriousness of offences against s 218(b). General deterrence is plainly an important consideration in sentencing for these offences.
Percentage of maximum penalty
The 'maximum penalty, taken and balanced with all the other relevant factors, provides a yardstick against which to measure an appropriate sentence.'[61]
[61] Ayton v City of Armadale [2020] WASCA 39 [61].
The sentence imposed can be measured against the maximum penalty by considering the percentage of the maximum it represents.[62]
[62] See, as examples, Ayton [64] and Trinder v Anderson (Unreported, WASC, Library No 960216, 24 April 1996) 9. See also Scherini v Cleveland Freightlines Pty Ltd [2018] WASC 5 [129], [187] and [191] (primarily in the context of comparing outcomes in other cases - see [120] - [124], [171] - [187]).
In this case, the offence period was 233 days. The maximum amount of daily penalties that could have been imposed was $5,825,000. When added to the maximum penalty for the offence itself of $200,000, the total is $6,025,000. The total penalty imposed, of $45,000, is less than 1% of the maximum. In the circumstances, I do not consider this to be a particularly useful measure.
I consider it is more useful in this context to consider the penalty for the offence itself and the penalty for the daily penalty component as separate components.[63]
[63] As was done by Edelman J in Chong v City of Mandurah [2013] WASC 470 [85] and Le Miere J in Chen v City of Stirling [2014] WASC 183 [13].
The fine for the offence itself was $40,000, being 20% of the maximum penalty. The maximum amount of daily penalties that could have been imposed was $25,000 per day, for 233 days, totalling $5,825,000. The daily penalty imposed of $5,000 was less than 0.1% of the maximum.
Although I consider these two measures to be of some value, they do not compel a conclusion either way. The fine for the offence itself could be seen to be on the high side. On the other hand, the percentage in relation to the daily penalty component was extremely low.
Seriousness of the offence
In Austrend Construction Pty Ltd v City of Swan,[64] McGrath J accepted that the factors identified by the appellant in that case were relevant factors in assessing the seriousness of planning offences. These were:
(a)whether the breach was inadvertent;[65]
(b)whether there was any commerciality in committing the breach;
(c)the scale and impact; and
(d)the permanency of the breach.
[64] Austrend Construction Pty Ltd v City of Swan [2017] WASC 67 [19].
[65] See also, as cited by McGrath J, Uxcel Pty Ltd v City of Bayswater [2013] WASC 5 [32].
I agree that these factors may be relevant in any particular case, depending on the circumstances.
In addition, the duration of the offending is plainly relevant. That said, this factor may be reflected by, or partly by, the imposition of daily penalties. It is necessary to ensure that the offender is not double-punished for this factor.
Inadvertent?
In his plea in mitigation, Mr Coote asserted that the registered owner of the land, his father-in-law, had consented to and assisted Mr Coote with the construction of the unauthorised structures. He further asserted that, upon completion of the structures, his father‑in‑law consented to and encouraged Mr Coote to utilise the unauthorised structures. Mr Coote asserted that his father‑in‑law's conduct, coupled with the fact that he had been operating his cabling business for a significant period of time with no complaints being made, caused him to form the mistaken understanding that he could use the property for the operation of a cabling business, until representatives of the shire attended.[66]
[66] Sentencing Transcript pages 9 - 10.
Mr Coote accepted, however, that he should have been more diligent.[67]
[67] Sentencing Transcript pages 16 and 21.
As set out earlier, I consider that his Honour concluded as follows:
(a)Mr Coote commenced using the land unlawfully not realising it was unlawful.
(b)By the start of the period of the charge commenced (17 December 2019), Mr Coote knew that his conduct was unlawful.
(c)Mr Coote did not commit the offence (and continue to do so) because he was flagrantly ignoring the law. His family circumstances were difficult and COVID made it more difficult to obtain reasonably priced storage elsewhere. Mr Coote was overwhelmed by the circumstances.
(d)However, during the period of the charge, Mr Coote knew that his conduct was unlawful. Therefore, Mr Coote did not engage in the offence due to inadvertence.
Neither party contends that these conclusions were not open to his Honour.
In the Magistrates Court, Mr Coote submitted that he had commenced action in the Supreme Court against the estate of his father-in-law (now deceased) seeking a declaration that he and his wife are the beneficial owners of the property and that they are to be transferred the title of the property free of all encumbrances upon obtaining approval for subdivision. He submitted that, if he was successful, he intended to seek retrospective approval.[68]
[68] Sentencing Transcript pages 13 - 14.
The retrospective approval would be for the existing structures, not for the unlawful use which was the subject of the offence. It was therefore entirely irrelevant to the offence. During the appeal hearing, Mr Coote asserted that it was nevertheless relevant to the sentencing exercise as it:[69]
goes towards being overwhelmed from the outset as to what to do. He -Mr Coote thought, perhaps wrongly, that the way to immediately address the problem of having the structures and the use of the land in the way that he was being told was unlawful was to get approval which he understood that he couldn't get until the registered proprietor gave that approval.
[69] ts 24.
Mr Coote's counsel accepted that he was submitting it was part of Mr Coote's background stress, but added '[a]nd for a lay person like Mr Coote, it would be not unreasonable for him to tie it all together'.[70] He accepted he was assuming, in effect, that the application would succeed.[71]
[70] ts 24.
[71] ts 24 - 25.
The magistrate found that Mr Coote was feeling overwhelmed and was experiencing difficult family relations. I do not consider that the Supreme Court action and the foreshadowed application for retrospective approval in relation to matters other than the offending conduct advances that position in any significant way.
Duration of offending
As noted in the discussion of the offence, Mr Coote made a number of unchallenged assertions in the sentencing proceedings. These were to the effect that:
(a)following the rejection of his wife's application for approval (on 21 August 2019), he understood that he would likely be ordered to cease operating the business on the premises;
(b)he did not actually take any steps to do so until after the shire served a formal direction in relation to the unlawful use of the property. The direction was served on 7 October 2019, so he had done nothing for over six weeks.
(c)by 16 December 2019, about two months after being served with the formal direction, he had ceased operating the cabling business and had begun negotiations with a third party for the purchase of the cabling business;
(d)all of the rubble was removed by November 2020.
It will be recalled that the prosecution notice alleged that the offence occurred from 17 December 2019 to 6 August 2020, a period of 233 days. Accordingly, it related to the period of time after Mr Coote had ceased operating the business, but continued to store materials, equipment and rubble on the land, without the necessary approval.
Commerciality?
The prosecutor in the Magistrates Court accepted that the offending in this case was less directly commercial than the offending in Austrend Construction, but did not accept that there was no element of commerciality. He noted that the offending enabled Mr Coote to avoid the expense of removing the materials and storing them elsewhere.[72]
[72] Sentencing Transcript page 8.
The magistrate found that there was a degree of commerciality, but that it was 'not a top-end matter'. He accepted that the circumstances were difficult.[73]
[73] Sentencing Transcript page 26.
Neither party contends that these conclusions were not open to his Honour.
Scale and impact
The magistrate found that the scale and impact of the breach was towards the lower end of the scale.[74]
[74] Sentencing Transcript page 26.
In the Magistrates Court, there was limited evidence of the extent of the piping and rubble on the property. An aerial photo showed what appeared to be two piles of large (commercial) piping, an extended arrangement of unidentifiable materials, and a pile of rubble.[75] However, there was no evidence which established precisely what the materials were or the quantity and type of the piping or rubble. It was therefore not open to the prosecution to submit that the seriousness of the offending was aggravated by its scale, nor did the prosecution seek to make that submission.
[75] Aerial photo 2 May 2020. See Sentencing Transcript page 6.
Mr Coote did not challenge the magistrate's finding that the scale and impact of the breach was towards the lower end of the scale in his grounds of appeal, nor did the respondent seek to contest this finding. I proceed, therefore on the basis that the scale and impact was, as the magistrate found, 'towards the lower end of the scale'.
That said, in my view, the impact was at the lower end of the scale. The property was zoned rural and there was no evidence the materials and equipment would have any impact at all on neighbours. In my view, it can be concluded that the offending had little or no impact.
Permanent or reversible?
Mr Coote was convicted of unlawfully using the land by storing equipment and machinery on the land without approval for that use. The effects were therefore entirely reversible.
As pointed out by McGrath J in Austrend Construction:[76]
The distinction between construction development cases and breaches involving unapproved use of land is a factor that should be considered for determining sentence for a breach. Though, as observed by Fiannaca J in Caruso v Shire of Augusta-Margaret River[77] breaches involving construction will not always be more serious than those involving the use of land. Rather, it will depend upon the circumstances of the respective case. A land use case may be characterised by a danger to the health and safety of the community.
[76] Austrend Construction [23].
[77] Caruso [134] ‑ [135].
In this case, the impact of the unlawful use was reversible (and not dangerous). The learned magistrate noted that this 'cuts both ways'.[78]
[78] Sentencing Transcript page 25.
Neither party contends that this was erroneous.
I agree with the learned magistrate. The fact that the impact of the unlawful use was reversible reduces the overall seriousness of the offence. On the other hand, the fact that the use was entirely reversible, yet was not reversed for a long period, increases the overall seriousness of the offence.
Conclusion on seriousness
The offence was certainly not at the high end of the scale. The unlawful use was initially (before the offence period) inadvertent. The conduct during the offence period was the storage of, relevantly, the bobcat (which could have been transferred to the other company), a small tip truck, PVC piping, and some rubble. The offence had little or no impact on other properties. The unlawful conduct was reversible.
However, I am not satisfied that the offence was at the lowest end of the scale.
At the time covered in the prosecution notice, commencing in December 2019, Mr Coote knew the use was unlawful, and had known for about eight months, since April. He had known for about four months, since August, that he would likely be ordered to cease operating the business on the premises.
During the offence period, the shire requested further updates in relation to whether the property would be brought into compliance. Mr Coote consistently said that he was unable to sign the application due to the registered proprietor being required to sign it and that the shire should pursue the registered proprietor because the sole director and secretary of the registered proprietor had consented to the developments and assisted in constructing them.[79]
[79] See under the heading 'The offence'.
In May 2020, seven months after the formal notice had been served, vehicles, machinery and other equipment and materials relating to cabling operations were still being stored at the site. The rubble was not removed until November 2020, more than a year after the notice was served. PVC piping was still on the property as at the sentencing date.
Having regard to all of the above, I consider that the offence was towards the lower end of the scale, but not at the low end.
Comparable cases
Comparable cases do not dictate the sentencing range for an offence. The position was recently reiterated by the Court of Appeal in The State of Western Australia v Zhuang:[80]
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
[80] Zhuang [109].
The consistency in sentencing that is sought is consistency in the application of the relevant legal principles.[81]
[81] Director of the Public Prosecutions of the State of Victoria v Dalgliesh (A Pseudonym) [2017] HCA 41; (2017) 262 CLR 428 [49] (Kiefel CJ, Bell and Keane JJ).
Sentences imposed in other cases are not binding precedents. The duty of the sentencer is to impose a sentence that is appropriate in all of the circumstances.[82]
[82] Dalgliesh [83] and [85] (Gageler and Gordon JJ).
In Paolucci v Town of Cambridge,[83] Edelman J noted that it was difficult to ascertain a clear range of penalties for these types of offence. His Honour said that this is perhaps 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.…
(iv)Differences in some of the legislative provisions…
[83] Paolucci v Town of Cambridge [2013] WASC 50 [99].
His Honour noted, however:[84]
Despite the difficulty in ascertaining any clear range from the cases there is one important factor which must be noted. There is a considerable difference between the penalties which are imposed upon corporate offenders and individual offenders. This naturally reflects s 40(5) of the Sentencing Act 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.
[84] Paolucci [100].
In Caruso v Shire of Augusta - Margaret River, Fiannaca J noted these observations in relation to corporate offenders, adding:[85]
In the context of planning offences, the distinction also reflects public policy considerations, in particular the need to ensure corporate responsibility, recognising, as a general rule, that large scale development will usually be undertaken by corporations with significantly greater asset and revenue bases than individuals, with a view to making large profits. That is not to say that considerations of that kind are irrelevant in the case of an individual, particularly where the person has assets worth several million dollars and is also motivated by profit, but the penalty imposed on an individual will always be limited by the lesser maximum penalty.
[85] Caruso [130].
A number of judges have reviewed penalties imposed for planning offences: Pritchard J[86] in Beydoun v City of Stirling,[87] Fiannaca J in Caruso,[88] and McGrath J in Austrend Construction. These reviews bear out Edelman J's observations.
[86] As her Honour then was.
[87] Beydoun v City of Stirling [2015] WASC 25 [157] - [180].
[88] Caruso [126] - [180].
In Caruso,[89] Fiannaca J also noted that many of the cases had been decided before the maximum penalties were increased. His Honour said that the appellate cases decided after the increase did not establish a range for planning offences under the new penalty regime.
[89] Caruso [182].
His Honour also noted that, where an appeal alleging manifest excess is dismissed, the penalty upheld does not stand as an upper limit or benchmark for offending of a similar seriousness to those cases.[90] The same can be said in relation to a substituted sentence where an appeal is allowed. Such a case will establish that the sentence overturned was too much for the offending in that case. However, it will not establish that the substituted sentence is the upper limit. It establishes that the substituted sentence was within the range of available sentences.[91]
[90] Caruso [183].
[91] CJH v the State of Western Australia [2013] WASCA 139 [45].
In addition to the cases discussed in these reviews, the parties cited Austrend Construction itself, Hunter v City of Joondalup,[92] and O'Malley v Shire of Northam.[93] The most recent of these was O'Malley, a decision of Smith J in 2020. Her Honour referred to both Austrend Construction and Hunter in her reasons. Her Honour said (footnotes omitted):[94]
There are no standards of sentencing customarily observed in relation to an offence of this character. In Hunter v City of Joondalup, Pritchard J relevantly observed:
The offences that are able to be committed under s 218 of the Act can occur in a huge variety of circumstances. They can be committed by individuals and by corporations. Even where the offences are committed by individuals, there can be a huge range of circumstances in which the offences are committed, and that makes identification of a range of penalties for offences under the Act somewhat difficult.
In addition, past cases must be viewed bearing in mind that there has been a change in the maximum penalty in respect of s 218 offences from $50,000 to the $200,000 maximum penalty which presently applies. Doing the best that I can, for individuals who use land in breach of the Act, other than by constructing buildings without approval, fines have ranged from that in the case of Uxcel v City of Bayswater, where the offender received a fine of $5,000 for installing a sign without approval (when the maximum was $200,000), where the offending was clearly at the lowest end of the spectrum of seriousness; to Callan v City of Fremantle, where first offenders used a shed on their property to store building materials without approval and, on appeal, each received a fine of $4,000 (when the maximum penalty was $50,000); to Teissier v City of Rockingham, where the offender (also a first offender) received a fine of $15,000 for causing about 250 truckloads of soil to be delivered to his property without approval (when the maximum fine was $50,000). In cases involving the construction of buildings without approval, or protracted use of land for commercial purposes without approval, much higher fines have been imposed.
[92] Hunter v City of Joondalup [2016] WASC 424.
[93] O'Malley v Shire of Northam [2020] WASC 429.
[94] O'Malley [92].
In the example of Teissier,[95] the offence occurred on a single day by a single act of a first offender. The fine of $15,000 was imposed at first instance and represented 30% of the then maximum. Le Miere J held it was not manifestly excessive.
[95] Teissier v City of Rockingham [2014] WASC 158.
Smith J in O'Malley continued (citations omitted):[96]
[96] O'Malley [93].
From the cases that have considered whether fines imposed on persons for a breach of s 218 of the Planning Act are manifestly excessive, it is clear that the offence applies to vastly different circumstances and that there is no established range of sentences for offences under this provision. However, the relevant factors that are usually raised in a case involving storage offences contrary to a planning scheme are as follows:
(a)whether the breach was part of a commercial activity, and whether the breach resulted in a financial gain to the offender;
(b)whether, on the one hand, the breach was inadvertent or a credible explanation for the breach was raised or, on the other, the breach was a flagrant disregard of planning requirements;
(c)whether the offender had been given notice to comply prior to being charged with the offence;
(d)whether the prohibited use of the land was reversible, and if so what steps if any were taken by the offender to comply with the planning laws;
(e)whether the breach was protracted;
(f)the extent of the prohibited use, that is the amount of materials stored in breach of the planning laws;
(g)whether there was any impact on other adjoining landowners or impact on amenity; and
(h)whether the offender had prior convictions for any similar breaches of planning laws.
I respectfully agree. In my view, the factual circumstances are too variable to permit any useful comparison to be made with sentences imposed in other cases.
Further, I am required to regard the offence as more serious than it was regarded in cases decided before the increase in the maximum penalty.[97]
Personal circumstances
[97] See under the heading 'Maximum penalty'.
Mr Coote pleaded guilty at the earliest reasonable opportunity. He has no criminal history.
In the Magistrates Court proceedings, Mr Coote did not adduce any evidence of his means, nor the extent to which, if any, a fine would be a burden.
Conclusion
To prove the allegation of manifest excess, Mr Coote must establish that it was not open to the magistrate to impose the fine. It is not for me to substitute the fine I would have imposed had I been sentencing Mr Coote for this offence.
General deterrence is a significant factor in sentencing for these types of offences. As noted by Hasluck J, the efficacy of planning controls depends not only upon formal enforcement but also upon a pervasive culture of general observance and respect for the underlying communal purpose.[98] Breaches of the law must be underpinned by significant penalties in order to deter infringement. The 2011 increase in the statutory penalties further underscores the need for a substantial penalty to be imposed.
[98] Swan Bay Holdings [74].
There was a commercial element to the offence. More significantly, the offence occurred long after Mr Coote was on notice that the use was unlawful.
On the other hand, the offending was of little or no impact and was entirely reversible. Mr Coote was a first offender and pleaded guilty at the earliest reasonable opportunity. He initially embarked upon the unlawful use of the land (prior to the offence period) through inadvertence.
The fine of $40,000 for the offence itself was 20% of the maximum penalty. The daily penalty imposed of $5,000 was less than 0.1% of the maximum. As I have said, the fine for the offence itself could be seen to be on the high side. On the other hand, the percentage in relation to the daily penalty component was extremely low.
In my view, the circumstances of the offending, in particular, the absence of any significant impact, were such that it was not open to the magistrate to impose a fine of $45,000.
For the reasons I have given, I would grant leave to appeal, allow the appeal and set aside the fine imposed by the learned magistrate.
The parties were provided with copies of the above reasons prior to a hearing on 14 November 2022. At that hearing, I heard from the parties as to the re-sentencing exercise.
I re-sentenced Mr Coote to a fine of $21,000 (of which $5,000 was the total of the daily penalties), giving brief oral reasons. I also ordered that the respondent pay a portion of Mr Coote's costs, in the sum of $5,000.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KH
Associate to the Honourable Justice Archer
14 NOVEMBER 2022
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