Corica v Throssell - [2012] WASC 393

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CORICA -v- THROSSELL [2012] WASC 393

CORAM: McKECHNIE J

HEARD: 21 SEPTEMBER 2012

DELIVERED : 21 SEPTEMBER 2012

FILE NO/S: SJA 1055 of 2012
SJA 1056 of 2012

BETWEEN: SALVATORE CORICA
Appellant
AND
JONATHAN THROSSELL
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P A ROTH
File No  :MI 13374 of 2010

Catchwords:

Criminal law and procedure - Plea of guilty - Whether discretion to alter plea - Principles to be applied

Legislation:

Nil

Result:

Appeal against conviction dismissed
Appeal against sentence dismissed

Category: B

Representation:

Counsel:

Appellant: Dr J Walsh
Respondent: Mr D P Gillett

Solicitors:

Appellant: Nelson Lawyers
Respondent: McLeods

Case(s) referred to in judgment(s):

De Kruiff v Smith [1971] VR 761
Goddard v City of Stirling [2009] WASC 28
Inns (1974) 60 Cr App Rep 231
Liberti (1991) 55 A Crim R 120
Lim v Bateman [2001] WASCA 307; (2001) 125 A Crim R 101
Maxwell v The Queen (1995) 184 CLR 501
O'Toole v Scott (1965) AC 939
Pilkington v The Queen (1955) Tas SR 144
R v Camberwell Green Stipendiary Magistrate; Ex parte Christie (1978) 2 All ER 377
R v Chiron (1980) 1 NSWLR 218
R v Guest; Ex parte Anthony [1964] 1 WLR 1273
R v Miller (1992) Qld R 566
R v Mutford & Lothingland Justices; Ex parte Harber (1971) 2 QB 291
R v Plummer (1902) 2 KB 339
S (an infant) v Manchester City Recorder [1971] AC 481
Simms v Moore (1970) 2 QB 327
Skipworth v The State of Western Australia [2008] WASCA 64
Sparks v Bellotti (1981) WAR 65
Swan Bay Holdings v City of Cockburn [2010] WASC 81

McKECHNIE J: The appellant was charged with failing to comply with a direction given under the Planning and Development Act 2005 (WA) s 214(3) requiring him to remove landfill. He was convicted on 12 April 2012. The magistrate considered that an appropriate fine would be $25,000 and an appropriate daily penalty would be $500 for 130 days. However, because of appellant's very poor financial position, and his lack of income, the fine was reduced to one of $15,000 with a daily penalty of $50 for 130 days, which was totalled at $6,500 in daily penalties.
The magistrate also ordered the appellant pay costs of the council set at $10,000.
From that conviction and that order, the appellant appeals to this court. To deal with the question of conviction I need to examine the circumstances of the plea of guilty.

The circumstances of the plea of guilty

17 November 2011

On 17 November 2011 the appellant appeared before the magistrate represented by counsel, Mr Freitag, who advised the magistrate that the matter had been able to be resolved. He explained that there were a list of agreements between the parties and the prosecutor would drop the charge against Mrs Corica. He then suggested that sentencing be adjourned for approximately three months, to enable Mr Corica to show that he has made progress towards the list of Shire's demands, when it was hoped that the magistrate and the Shire would take a more lenient view.
The prosecutor then applied to amend the date on the prosecution notice effectively confining the period to between 11 July 2010 and the date of the signing of the prosecution notice, 17 November 2010. Mr Freitag noted that this was in the appellant's favour as it reduced the period of the offending. Mr Freitag said:
FREITAG, MR: ... Mr Corica will then plead guilty to that matter, your Honour.
HIS HONOUR: Very well.
FREITAG, MR: I don't know if you need to read that to him, or just take it from me.
HIS HONOUR: Thank you. I prefer to take it from Mr Corica (ts 3).
The magistrate then asked the appellant to stand and said:
You failed to comply with a direction given to you under section 214(3) of the Planning and Development Act, requiring you to remove fill from your land within the time specified in the direction, contrary to section 214(7) of the Planning and Development Act. They say you failed to remove some fill from your land that you were directed to remove. Do you understand the charge?
CORICA, MR: Yes.
HIS HONOUR: How do you plead to it? Guilty or not guilty?
CORICA, MR: Guilty, your Honour.
HIS HONOUR: Sorry?
CORICA, MR: Guilty (ts 3).
Mr Freitag read the conditions:
1. Erect and pay for, with no contribution to be required from Mr Smith, who's the neighbour, a Stratco good neighbour type fence, on top of the limestone block footing along the west boundaries of lots 1 and 2, cream fence, limestone block footing minimum 400 millimetres above natural ground level at the western boundary of lots 1 and 2.
Limestone footing to extend from north-west corner of lot 1, southward along boundary to a point level with swimming pool filter on 6 Gabo Road. Stratco fence to extend to Gabo Road boundary.
There is one exception to the fence requirement, that is:
No limestone footing required around tree on western boundary at rear of dwelling at 6 Gabo Road. Fence and footings to stop and start around the tree.
2. Reduce batter slope of fill along western boundary of lots 1 and 2 two to one.
3. Remove pile of sand on north-west corner of lot 2, and pile of limestone rocks on south-west corner of lot 2.
4. Stabilise batter slopes with ground cover type vegetation.
5. Stabilise soil on lot 2 with mulch or vegetation.
6. Remove all machinery and scrap materials and rubbish from south‑west corner of lot 1, north-west corner of lot 2 (ts 3 - 4).
Copies of the conditions were handed to the court and to the other side. The Shire indicated it was an acceptable course. After some further interchange which is not relevant, the magistrate said to the appellant:
Your matters will be adjourned to 8 March 2012, hopefully for completion of the projects that you agreed to complete. You will be put on notice to attend on that day. So if you would just like to have a seat for a moment, we'll get you some paperwork and then you will be free to go.
CORICA, MR: Thank you, your Honour (ts 6).

Proceedings thereafter

Dr Walsh, today, does not place reliance on affidavits filed or indeed on any material, and his argument is confined to what occurred at the hearing on 12 April 2012. Nevertheless, to put that in context, it is necessary to refer to the applications which were made before that.

Application of 15 February 2012

On 15 February 2012 the appellant filed an application: 'A plea in the case above was made to and in the incorrect name'.
The application was supported by an affidavit which read as follows:
I, Salvatore Corica say that I made a plea in the above matter in error as the name so-mentioned on the prosecution notice is not my name and that my legal representative failed to act under my instructions.
I interpose to say that as at 15 February 2012, therefore, the appellant was not raising any issue of misunderstanding or duress or anything else, but a query simply in relation to his name.

Application of 29 March 2012

The appellant made an further application to:
Set aside the sentencing in this matter due to mitigating circumstances in that two other matters in the defence of this matter need to be considered and that a guilty plea was entered by the accused due to undue influence by the accused lawyer.
The application was accompanied by an affidavit which is a mixture of fact and assertions. Paragraph 1 reads:
1.Set aside the sentencing in this matter due to mitigating circumstances in that two other matters in the defence of this matter need to be considered and that a guilty plea entered by the accused due to undue influence by the accused's lawyer.
The day before the hearing of 12 April 2012 the appellant filed a further affidavit asserting propositions of law that are simply wrong for reasons painstakingly spelt out in many judgments of the Court of Appeal and primary judges. Enough time and ink and effort have been wasted on them and I do not propose to waste any more.
There is then an assertion that the Shire, together with the neighbour, prevented the appellant from constructing a dividing fence and that the Shire even failed to divert storm water. The significance of this affidavit is that the ground which was then advanced was an assertion of undue influence on the part of the lawyer. Dr Walsh, today, expressly does not advance the submission on the basis of undue influence on the appellant by his counsel, and if I may respectfully say, sensibly so, in the circumstances.
Nevertheless, it is instructive that was the basis upon which the matter was being advanced on the time of the application on 12 April 2012.

Affidavit of 11 April 2012

The affidavit is largely incoherent. The references to portions of various judgments from the High Court do not assist the central premise which the appellant wished to advance. It includes the following:
21.No criminal charges can be commenced against a natural sovereign subject who owns land under fee simple freehold land alienated by the Crown.
...
23.The charges brought before this Court are only hearsay as no one from the Shire of Mundaring that is the CEO Mr Jonathon Throssell is employed by the shire of Mundaring and is a natural person.
The affidavit concludes at par 28:
Your Honour, Magistrate Roth should you proceed with this action and you wish to find against me I would bring it to your attention that you would be in contempt of The High Court and its rulings as they are binding on all Courts, Judges and the people.
Though largely incoherent, the arguments advanced, so far as they can be distilled, have a familiar ring about them and I suspect other persons had a hand in their drafting. I cannot say that they assisted the appellant. Conspicuously absent is any evidence about the actions of counsel or any undue influence or any evidence of misunderstanding or anything else that might be relevant to the issue at hand.

Hearing on 12 April 2012

On 12 April 2012 the appellant appeared without counsel and applied to set aside the plea of guilty. There was an exchange between the magistrate and the appellant about the power to change a plea and then the appellant said:
My solicitor unduly influenced me to plead guilty (ts 3).
His Honour then made a comment and Mr Corica said:
To save my wife from undue stress, to come to court and answer charges which were unfounded (ts 3).
It is these matters, in part, along with others, that Dr Walsh relies on today in support of his submissions that there has been a miscarriage of justice.
The magistrate took the view that he had no power and that it was a matter for the Supreme Court. The prosecutor referred to Lim v Bateman [2001] WASCA 307; (2001) 125 A Crim R 101 and noted that the appellant had been party to lengthy negotiations on the morning of the hearing which resulted in his pleading guilty to the charge on the basis that the charge against his wife would be withdrawn and he would carry out some works on his property to reduce the impact of the fill on his neighbour.
In answer to a request from the magistrate to explain his position, the appellant said:
CORICA, MR: Sir, I didn't understand the charges, even though my solicitor might have explained to me there's no way in the world I understood the charges and I'm not accepting a plea of guilty in this charge whatsoever. Because of the actions of the Shire on my property, what they've done to me the last five years. Sir, they've taken possession of my property and I cannot use it. They've taken all my proprietary rights (ts 6 ‑ 7).
He also pointed out that he had writs against the Shire of Mundaring. He said:
I've also got a writ against the neighbour, Mr Allan Smith. The fact of the matter is that the Shire is discharging water into my property, there's a depression in my property two metres deep by 12 metres wide, the full length of my property. I cannot use my property in any way whatsoever, the property is totally useless and has no value whatsoever.
The magistrate took the view there was no jurisdiction in the court to accept a change of plea either under the Magistrates Court Act 2004 (WA) or the Criminal Procedure Act 2004 (WA). He then noted:
It may well be that in circumstances where, on the face of matters, it appears that the plea was not properly entered, for instance, if a person was suffering from some mental disability at the time that the plea was entered and he was unrepresented, he or she was unrepresented at that time, there may then be grounds to say that the plea was not ever properly entered. It is also, of course, the natural situation and the common situation and the continuing situation that if by way of the plea in mitigation or if it is an ambiguous plea, as it were, and/or the prosecution facts are not capable of supporting a conviction, then there is a jurisdiction in this court to set it aside, to set the plea of guilty aside, because it is not a true plea entered.
It is clearly, on that situation, a plea entered either as a result of confusion or a failure to understand the charges as it stands. But there is otherwise no statutory jurisdiction which would allow this court to set aside a plea which, on the face of matters, is properly entered. In that regard, as I have indicated, Mr Corica was, at the time that this plea was entered, represented by counsel. There were substantial negotiations between Mr Freitag who was acting on behalf of Mr Corica and the counsel, and Mr Gillett acting on behalf of the counsel, which lead to the plea of guilty being entered (ts 8).
The magistrate said:
There could be no question in my mind but that Mr Corica understood the charge, and he understood what he was pleading to, there was no mistake on his part, there was no failure on his part to understand what was going on and the duress, if there was duress, it was duress by himself in relation to his concern over his wife rather than any duress either by his counsel, by the prosecution or by any other third party (ts 9).

Appeal against conviction

1.The magistrate made a mistake in accepting the defendant's plea of guilty.
2.The magistrate did not consider any evidence before accepting the plea of guilty.

The law in relation to a change of plea

I have outlined generally the evidence in relation to the plea, such as it was, in affidavit form and what the appellant said from the bar table at various times. I should say that the matter was also raised when it came to his plea in mitigation because at page 20, when asked if he wanted to say anything about penalty, he said:
There should be no penalty whatever because I complied to everything the shire told me to comply to. I had the shire there every week looking at the property and they approved every part of that construction and that development from day to day. All the heights were approved by the shire.
HIS HONOUR: Do you have any documents establishing that?
CORICA, MR: No, I haven't, because it was all verbal. The shire was there. Like I said, the neighbour was complaining to the shire every week about what I was doing on the property.
He then went into a description about those matters.

The law in relation to a change of plea

The Magistrates Court is created by statute and cannot enlarge its jurisdiction by reference to inherent jurisdiction. However, a Magistrates Court does have an inherent power to regulate its procedures in the interests of justice: R v Camberwell Green Stipendiary Magistrate; Ex parte Christie (1978) 2 All ER 377; Simms v Moore (1970) 2 QB 327; O'Toole v Scott (1965) AC 939; Sparks v Bellotti (1981) WAR 65.
In Maxwell v The Queen (1995) 184 CLR 501, Dawson and McHugh JJ said:
The plea of guilty must, however, be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. … But otherwise an accused may insist upon pleading guilty (511).
In R v Plummer (1902) 2 KB 339 one person pleaded guilty to conspiracy and two others were subsequently acquitted. Wright J had no doubt that the court had power to allow the appellant to withdraw his plea of guilty (347). The other judges agreed. Bruce J said:
It is clear that the Court had power to allow the appellant to withdraw his plea of guilty. The Court no doubt had a discretion in the matter, and, if the Court had exercised its discretion, it may be that that would be final and we should have no power to interfere with the exercise of discretion. But the Court, acting upon the erroneous opinion that it had no power to allow the withdrawal of the plea, never did exercise its discretion (349).
In S (an infant) v Manchester City Recorder [1971] AC 481 the House of Lords held the view that a magistrates court was not functus officio and able to permit a change of plea. The House of Lords overruled R v Guest; Ex parte Anthony [1964] 1 WLR 1273, and unanimously allowed the appeal. Lord Morris of Borth‑y‑Gest said:
I consider that a court of summary jurisdiction which has accepted a plea of guilty to the offence charged is not in law debarred from permitting (at any time before passing sentence) a plea of not guilty to be substituted (504).
In a further development following S (an infant) v Manchester City Recorder and R v Mutford & Lothingland Justices; Ex parte Harber (1971) 2 QB 291 the Court of Criminal Appeal the judgment of Lord Parker CJ (Ashworth and Brown JJ agreeing) said:
Once one realises that the jurisdiction to entertain a change of plea is not a statutory one but is based on the inherent jurisdiction of any court to see that justice is done, one asks oneself whether the statutory provisions to which reference has been made in the case of committals have in respect of the two courts forming this composite court ousted their jurisdiction. In my judgment those statutory powers clearly have not done so (298).
In De Kruiff v Smith [1971] VR 761 McInerney J said:
The trend of more recent authorities is that until sentence has been pronounced, the court has the power to permit a plea of guilty to be withdrawn (765).
Although McInerney J acknowledged the discretion in the Magistrates Court, for other reasons the order nisi was discharged.
In Pilkington v The Queen (1955) Tas SR 144, in a judgment admirable for its brevity, Gibson J said:
It appears from what has been said by the Court of Criminal Appeal in R v Lucus (1908) 1 Crim App R 61 that it requires a very strong case and exceptional circumstances before the court will interfere with a conviction on a plea of guilty. Normally, the court will not interfere when the accused has been represented by counsel. To hold to the contrary would open the floodgates to appeals on the ground that persons were given advice which turns out unproductive of results for them.
It could be another matter if the appellant were improperly induced to plead guilty by his counsel - there could be circumstances that might well vitiate a conviction (145).
Other examples include, R v Miller (1992) Qld R 566; R v Chiron (1980) 1 NSWLR 218.
In Inns (1974) 60 Cr App Rep 231 Lawton LJ, speaking for the court:
The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused's guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment, a nullity (233).

As I have earlier indicated, Dr Walsh, on behalf of the appellant disavows any argument based on inducement by counsel.
The circumstances where a court will exercise a discretion to allow a change of plea cannot be regarded as subject to categories which are closed. In the normal course, where a person is represented by counsel, the court is generally entitled to rely upon counsel having explained to a defendant the legal and factual matters necessary to allow a defendant to make an unequivocal plea of guilty. Absent an express statutory provision, a court is not obliged to separately explore the nature of a plea of guilty with the defendant unless, in the course of the plea in mitigation, something arises which might indicate that the plea is less than equivocal. In those circumstances, the court then has the duty, referred to by Dawson and McHugh JJ in Maxwell, to obtain an unequivocal plea of guilty.
For obvious reasons, a court approaches an application for a change of plea with caution.
In Liberti (1991) 55 A Crim R 120 (Kirby P, Grove and Newman JJ concurring) said:
For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence (122).

An error of law was made

I conclude that the magistrate made an error of law in concluding that he had no power to set aside the plea of guilty. Power to allow the withdrawal of the plea of guilty is part of the inherent jurisdiction of the courts to see that justice is done, as stated by Parker LCJ in the passage I quoted from R v Mutford & Lothingland Justices.
The appellant asserts that the magistrate did not consider any evidence before accepting the plea. That is wrong. The magistrate heard counsel indicate a plea of guilty on 17 November 2011. Even so, he required the appellant to plead personally. The appellant did so.
There was nothing unequivocal in the plea of guilty. The appellant subsequently put three affidavits before the court. Nothing in those affidavits, apart from one bare assertion now not relied on, indicated that counsel had improperly influenced the appellant. The various passages to which Dr Walsh has drawn my attention today from the hearing on 12 April 2012 do not, in my view, show that the plea was other than an unequivocal plea made with full understanding of its consequences. Those of course, were statements that were simply asserted from the bar table by the appellant.
Moreover, the history of the proceedings is powerful evidence that this was a voluntary plea. The case against the appellant was simple to understand. It was apparently strong and there was a real advantage for the appellant to plead guilty. The magistrate made findings of fact, as I have set out earlier in the transcript, where he concluded:
[I] do not have jurisdiction to do so. Secondly, if I am incorrect and I do have the jurisdiction to do so there is no basis or grounds, in my view, in which it is appropriate to set aside the plea and the plea will stand (ts 9).
Those are findings of fact and the appellant has not put any material before me sufficient to displace those findings. Therefore, even though the magistrate erred in holding that he lacked jurisdiction to set aside the plea, he nevertheless went on and made a factual finding adverse to the appellant that the factual circumstances were not, in any event, sufficient to justify a change of plea in discretion. There has been no miscarriage of justice and therefore the ground of appeal against conviction is dismissed.

Appeal against sentence

1.The sentence was manifestly excessive in all of the circumstances.
2.The magistrate overlooked the mitigating circumstances surrounding the alleged non‑compliance with the Shire's requirements.

The prosecutor read the facts:
The accused and his wife are the owners of a residential property, it's located at numbers 8 and 10 Marloo Road in Greenmount, which is on the corner of Marloo Road and Gabo Road in Greenmount. Both accused are the registered proprietors of the property at 8 Marloo Road, while the property at 10 Marloo Road is just in the accused's wife's name. Effectively, however, the lots comprise one property. The combined area of the two lots is 4000 square metres or approximately an acre, and there's a house on the 10 Marloo property which is to the north, and the property at 8 Marloo Road is effectively the front yard or the yard at the property.
In May 2006, the accused applied for retrospective planning approval for fill that was on the property. The application was to put up to 500 millimetres of fill on the property at 8 Marloo road, that's the southern property, and by placing up to 1 metre of fill on the northern property at 10 Marloo Road. This proceeding before you relates solely to the southern property, the 8 Marloo Road property, because the charge against the other property was withdrawn. While the application was being processed the shire received a complaint that a large amount of fill had already been placed on the property.
Inspection of the property by officers of the city in 2006 revealed the accused had commenced placing fill on the property, the fill consisted of soil and sand as well as building rubble such as bricks and concrete. Despite the fact that accused had commenced placing fill on the property prior to obtaining approval, the shire subsequently approved his application in January 2007. The shire was of the opinion at that time that if the fill already placed on the property was spread out and levelled it would not exceed the 0.5 metres that had been approved for the 8 Marloo Road property.
However, after the approval was granted the accused commenced bringing additional fill onto the property, and subsequent inspections of the property between May and September 2007 revealed the accused had placed extensive amounts of fill on the property to a height of between two and three metres along the western boundary of the property. The placing of the fill on the property was causing dust problems for the adjoining neighbour to the west of the accused property, and on one occasion after heavy rain resulted in a neighbours, which is next to the boundary between the properties, being filled with mud.
In June 2007, the shire wrote to Mr Corica in relation to the unauthorised fill requiring additional information and amended plans showing the levels of the fill. The accused subsequently submitted a further application for planning approval for the unlawful fill, which indicated between 1.25 and 3.1 metres of fill had already been placed on the 8 Marloo Road property. That application was subsequently refused by the shire in September 2007. Despite that refusal, however, the accused continued to place fill on the property.
At a site meeting on the property on 28 September 2007, the accused agreed to reduce the height of the fill on the property within 60 days. Despite the accused undertaking to remove fill, in November 2007 a further five truck loads of fill were deposited on the property and fill continued to be placed on the property in 2008 (ts 12 - 13).
A series of photographs were then tendered. I have viewed those photographic exhibits.
The prosecutor then continued:
When the accused was asked why he placed the fill on his property without approval, the accused denied that there was too much fill on his property and became abusive. Because of the difficulties dealing with the accused, on 10 May 2010, the shire gave Mr Corica a formal direction under the Planning and Development Act, and that's under section 214 of the Planning and Development Act requiring him to reduce the level of fill on the properties to the levels shown on the approved plans, that was the half a metre of fill that was approved in 2007, and he was required to do that within 60 days.
Subsequent inspection of the property by officers of the city revealed that no fill had been removed, and that remains the case to the present day. As you're aware, sir, the shire agreed when this matter came before the court in November, and this was really a last ditch effort and attempt to resolve the matter and give some finality to it, the shire agreed to allow the majority of the fill on the property to stay, and that was on the basis that the accused carried out the works, the subject to that agreement.
The purpose of those works was to prevent any further soil run-off onto the neighbouring property at 6 Gabo Road, and you might recall, sir, the agreement was to build a limestone based Stratco good neighbour type fence, so with a limestone block retainer that would stop water run‑off. It would mean that the neighbour didn't have to look at the fill, and there was also a requirement just to reduce the batter slope of that fill up against the boundary so that it wasn't quite as imposing.
In essence, it would have allowed much of the fill that was on the property to remain in place and the shire agreed to that on the basis that neighbour was satisfied with that, and it seemed a sensible way to resolve the matter. Unfortunately, that hasn't happened, the accused hasn't carried out those works and as a result we're instructed to seek a substantial penalty in this matter in order to provide some incentive to the accused to carry out the terms of the direction and remove the fill from the property (ts 17 - 18).
The appellant then made a plea in mitigation:
CORICA, MR: There should be no penalty whatsoever because I complied to everything the shire told me to comply to. I had the shire there every week looking at the property and they approved every part of that construction, that development from day to day. All the heights were approved by the shire.
HIS HONOUR: Do you have any documents establishing that?
CORICA, MR: No, I haven't, because it was all verbal. The shire was there. Like I said, the neighbour was complaining to the shire every week about what I was doing on the property.
Sir, as far as the five truck loads of fill that was brought in, they were to repair the erosion from the embankment that the shire built on my property. They built an embankment which was two metres inside my property and they actually dispossessed me on my own property. That fill that was brought in was fill to repair the embankment that was eroded away by the shire from the storm water. They actually refused to repair that embankment, so I had to repair it because I was attempting to put a fence up, and without me repairing it there was no way that I could put a fence along that line, along Gabo Road. Sir, and I've got photos here of the erosion. I've got photos here of the pipe that they've put in and the cause of the erosion. And I've got photos here of the embankment exceeding in excess of two metres into my property.
HIS HONOUR: Have you shown those to Mr Gillett?
PROSECUTOR: I have seen those, sir. They relate to the other side of the property. It's a completely different boundary to the boundary that I've shown you photographs, sir.
HIS HONOUR: They relate to lot 10, do they?
PROSECUTOR: They relate to the same lot but the other side of the lot, okay, on the Marloo Road side of the lot. In my submission, it has no bearing on the fill on the western side.
CORICA, MR: Sir, as far as the - - -
HIS HONOUR: Can you hand those up?
CORICA, MR: As far as the mud in the neighbour's swimming pool, the water came off the Marloo Reserve in a flash storm and came down through my property, the neighbour's property and it created a bloody nuisance. Since I've put the limestone fence up, there is no problems with erosion of my embankment or whatsoever, or water going into the neighbour because that stopped it. I've asked the shire to put a spin drain on the Marloo Reserve which they failed to do so for two years. That water, the Marloo Reserve acted as a catchment and discharged water onto my property as well as the neighbour's property. The shire needs to take responsibility with their own facts of them not doing any work and maintenance in the area (ts 20 - 21).
The magistrate's sentencing remarks referred to the photographs. He said:
Certainly, indubitably, adversely affects the neighbour's ability to enjoy his property because, visually, it is very ugly matter and, again, should that fill slip or slide, not only would his carport be in danger but it seems to me his entire house would be in danger and thus substantially reducing the amenity of his house (ts 25).
He then referred to Swan Bay Holdings v City of Cockburn [2010] WASC 81 (Hasluck J) before continuing:
In my view, by the actions of Mr Corica, he has substantially reduced the amenity of his neighbour's premises. He has on numerous occasions been required or been requested by the council to do something about it. He has consistently refused to do so. There is very little, in my view, which mitigates the conduct (ts 25 - 26).
The magistrate noted the plea of guilty which he accepted required some mitigation, although the plea was entered on the date of trial and that the appellant did not do what he agreed to do.
The magistrate noted the appellant had no remorse. The appellant, he said, blames everyone else. The magistrate took into account that he is apparently unemployed and in view of his health, unemployable. His wife was employed and the family is reliant on her income. The magistrate considered it was an extremely serious offence and imposed the penalty I have set out.
The submissions against sentence are:
1.Mr Corcia's capacity to pay the fine is impacted by his unemployment capacity. The total penalty the Court imposed was $31,500, which is manifestly excessive considering that Mr Corica is a pensioner and physically disabled with arthritis.
2.There was no allegation by the prosecution that Mr Corica had previously been charged with any previous offences, and the fine is excessive for the first offence.
3.Mitigating factors under the Sentencing Act 1995 (WA) (the Act).
4.Plea of guilty was given 'a very minor amount of credit' (pg 26 transcript 12 April), and the Magistrate stated that he had reduced the fine by $10,000 due to his lack of employment, but did not state that the sentence was reduced due to Mr Corica's guilty plea. Pursuant to s 8(4) of the Act, the court must state that it is reducing a sentence due to a mitigating factor if it does so. This suggests that Mr Corica's plea of guilty did not contribute to lowering his sentence and was not accepted as a mitigating factor.
In relation to that last ground the magistrate did note the plea of guilty and accepted that that required some mitigation. A couple of things can be said about the plea. The first is that it was made very late on the morning of trial and in broad terms the earlier a plea is made the greater effect it is likely to have by way of mitigation. Secondly, the magistrate did comply with the Sentencing Act 1995 (WA) s 8(4) by stating that he was reducing the sentence due to the mitigating factor. It is not necessary for a magistrate to put a precise percentage or figure on that.
In his remarks on sentence the magistrate noted the following:
•The photographs show a very substantial amount of fill has been brought in at a substantial height.
•Immediately in the neighbour's backyard there is a massive pile of just basically dirt which sits there which adversely affects the neighbour's ability to enjoy his property.
•Requirements under the Planning and Development Act were brought in for the planning of the community as a whole and the need for the community to respect the underpinning principles including that all people should be entitled to the amenities of their property.
•The actions of the appellant have substantially reduced the amenity of his neighbour's premises.
•On numerous occasions the appellant has been required or requested by the council to do something about it and has consistently refused to do so.
•There is very little which mitigates the offence.
•The plea of guilty has to be some mitigation recorded in relation to that plea.
•It is noted that the plea was entered on the day of trial.
•After the plea was entered an agreement was reached in relation to actions to be taken by Mr Corica and he has not done what he agreed to do.
•The appellant has no remorse whatsoever for his conduct.
•The mitigation as a result of the plea is a minor amount of credit.
•He is apparently unemployed and as a result of health issues unemployable.
•His wife is employed and the family is reliant on her income.
•It is an extremely serious offence.
•It is an upper end of the scale offence.
•The fine has to be a substantial fine in order to reflect the seriousness of the offending and to make it clear to anyone else that conduct will not be tolerated.
•The appropriate fine would be in the nature of $25,000.
•The appropriate daily fee would be in the sum of $500 for 130 days.
•That has to be reduced substantially given the appellant's very poor financial position and lack of income.
•The fine is reduced to $15,000.
•The daily penalty having regard to his limited financial capacity will be one of $50.
•There will be an order for costs set at $10,000.
The magistrate does not appear to have overlooked any matter both in aggravation or mitigation. As was noted by E M Heenan J in Goddard v City of Stirling [2009] WASC 28:
It is well-established that if there is such a manifest disproportion between a penalty imposed and any penalty which might reasonably be regarded as being imposed in the circumstances, then that disproportion of itself constitutes error and may also connote some undisclosed or unmentioned error in the course of reasoning [12].
In determining whether a sentence is manifestly excessive the court has regard, amongst other things, to the standards of sentencing customarily imposed for offences of the type: Skipworth v The State of Western Australia [2008] WASCA 64 [10] (McLure JA).
The fine was within the range of fines for what was a serious sustained breach of planning laws. The magistrate correctly took account of the fact that the appellant was unemployed. Of course the appellant is also a property owner.
The magistrate did not make an error, as it turns out, in the calculation of the daily penalty. As it is now accepted that despite what the transcript says the daily penalty was set at $50 per day, which in all the circumstances is considered to be an appropriate and moderate daily penalty. Although I would grant leave in relation to the appeal against sentence the appeal is dismissed.

Orders

Appeal against conviction

1.Leave to appeal granted.
2.Appeal dismissed

Appeal against sentence

1.Leave to appeal granted.
2.Appeal dismissed.

The appellant to pay the respondent's costs of both appeals fixed in total of the sum of $5,000.