Del Borrello v The City of Vincent
[2019] WASC 300
•21 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DEL BORRELLO -v- THE CITY OF VINCENT [2019] WASC 300
CORAM: CORBOY J
HEARD: 18 JANUARY & 9 AUGUST 2019
DELIVERED : 21 AUGUST 2019
FILE NO/S: SJA 1089 of 2018
BETWEEN: LORETO DEL BORRELLO
Appellant
AND
THE CITY OF VINCENT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE SCADDAN
File Number : PE 61851 of 2016, PE 61852 of 2016, PE 61858 of 2016
Catchwords:
Criminal law - Appeal against sentence - Building Act 2011 (WA), s 77 and s 80(1) - Error in stating maximum penalty - Whether a substantial miscarriage of justice - Whether error in refusing to make a spent conviction order
Legislation:
Building Act 2011 (WA), s 77, s 80(1)
Criminal Procedure Act 2004 (WA), s 25
Result:
Leave to appeal on ground 2
Appeal allowed on ground 2
Sentence of a global fine of $10,000 set aside
Appellant resentenced to a global fine of $6,000
Leave to appeal on all other grounds refused
Category: B
Representation:
Counsel:
| Appellant | : | Mr G Stubbs |
| Respondent | : | Ms A M Wood |
Solicitors:
| Appellant | : | Poliwka Legal |
| Respondent | : | Kott Gunning |
Case(s) referred to in decision(s):
Basham v City of Joondalup [No 2] [2016] WASC 120
Frewen v Dalgreen [2014] WASC 407
House v King [1936] HCA 40; (1936) 55 CLR 499
Inglis v Pinch [2016] WASC 30
Powell v Tickner [2010] WASCA 224
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
Rodi v The State of Western Australia [No 2] [2014] WASCA 233
Samardali v The Queen [2018] WASCA 220
Wallam v Dent [2008] WASC 170
Willenberg v Downey [2015] WASC 282
CORBOY J:
The appeal
The appellant was charged with eight offences against s 77 and s 80(1) of the Building Act 2011 (WA). He pleaded guilty to three charges; the remaining charges were dismissed for want of prosecution under s 25 of the Criminal Procedure Act 2004 (WA). A global fine of $10,000 was imposed and the appellant was ordered to pay the respondent's costs of the prosecutions fixed at $5,284.67.
The offences for which the appellant was convicted on his plea were that:
(1)between 6 July and 13 July 2015 at 199 Scarborough Beach Road Mount Hawthorn (the Property), the appellant contravened s 77 of the Building Act by adversely affecting land situated at 201 Scarborough Beach Road, Mount Hawthorn (the Adjoining Land) by the excavation of soil beyond the boundaries of the Property without the consent of all of the affected owners of the Adjoining Land or a court order;
(2)between 6 July and 13 July 2015 at the Property, the appellant contravened s 80(1) of the Building Act by removing a dividing fence between the Property and the Adjoining Land without first obtaining consent of all of the owners of the Adjoining Land that shared the dividing fence; and
(3)prior to 4 July 2016 at the Property, the appellant contravened s 77 of the Building Act by adversely affecting land, namely damaged a footpath, beyond the boundaries of the works land without the consent of the owners of the adversely affected land or a court order.
The appellant appeals from his sentence on nine grounds. In summary, the appellant alleges that:
(1)the magistrate failed to 'properly' take into account that the appellant had pleaded guilty at the first opportunity after the respondent had agreed to discontinue five of the eight charges;
(2)the magistrate erred in finding the maximum penalty for each of the three offences for which the appellant was convicted was $50,000 when the maximum penalty for a contravention of s 77 of the Building Act was $25,000 and $10,000 for a breach of s 80(1) of the Act;
(3)the magistrate erred in finding the appellant had been unreasonable and unrepentant in his dealings with the respondent;
(4)the magistrate did not 'properly' take into account attempts made by the appellant to obtain the consents required by the Building Act and placed 'undue' weight on the appellant's failure to obtain signed copies of the form 'BA20A' prescribed by the regulations to the Act;
(5)the magistrate erred in finding there could have been considerable damage as a result of the appellant's activities;
(6)the magistrate did not 'properly' take into account the fact that the damage to the footpath was inadvertent;
(7)the magistrate erred in failing to exercise a discretion to make a spent conviction order when it had been found that the appellant was of good character and it was unlikely he would commit a similar offence in the future;
(8)in deciding not to make a spent conviction order, the magistrate failed to take into account the appellant's inexperience in building matters; whether an order would 'positively aid his rehabilitation' and whether refusing to make an order would impact upon his travel plans; and
(9)it was a 'miscarriage of justice' for the magistrate not to make a spent conviction order given that the offences for which he had been convicted were 'minor regulatory' offences; no lasting damage had occurred; and the seriousness of the appellant's offending and his culpability was such that it was appropriate that an order be made.
I have concluded that:
(a)the appellant should be granted leave to appeal on ground 2;
(b)the appeal should be allowed on ground 2;
(c)the sentence of a global fine of $10,000 should be set aside and the appellant resentenced to a global fine of $6,000; and
(d)leave to appeal on all other grounds should be refused.
The appellant's offending
The offences
Section 77 of the Building Act states:
A person responsible for work must ensure that the work does not adversely affect land beyond the boundaries of the works land —
(a)unless each owner of the land that may be adversely affected consents to the work being done even though the land may be adversely affected in that way, and the work is done in accordance with the consent; or
(b)unless the work is done in accordance with an order under section 86(2)(b); or
(c)except in prescribed circumstances.
The penalty prescribed for a breach of s 77 is a fine of $25,000.
Section 80(1) of the Building Act states:
(1)A person responsible for work must ensure that no fence, gate or other barrier to land on or beyond the boundaries of the works land is removed —
(a)unless each owner of the land that shares, or on which is located, the fence, gate or other barrier consents to the removal; or
(b)unless the removal is in accordance with an order under section 86(2)(g); or
(c)unless the removal is required as a matter of urgency to prevent imminent collapse of, or damage to, any land including a building or structure on the land; or
(d)unless each of the following applies —
(i)the removal is required for the construction of a close wall;
(ii)a building permit for the close wall is in effect;
(iii)the person responsible for the work has given at least 7 business days' notice of the proposed removal to —
(I)each owner of the land mentioned in paragraph (a); and
(II)at least one adult occupier of the land, if the land is not occupied by any of its owners; or
(e)unless the land that shares, or on which is located, the fence, gate or other barrier is vacant land, or any building on that land is vacant; or
(f)except in prescribed circumstances.
(2A)In subsection (1)(d) —
close wall means a wall, fence, post or column, whether free‑standing or attached to, or forming part of, a building or structure, that is so close to a boundary of the land on which the wall or fence is located that it is not reasonably practicable to build a separate dividing fence along the boundary.
The penalty prescribed for a breach of s 80(1) is a fine of $10,000.
An issue about the facts on which the appellant was sentenced
The respondent prepared a statement of material facts prior to the plea hearing. It is apparent from its contents that the statement was prepared in anticipation of the hearing and before the respondent decided to discontinue some charges.
The statement contained a detailed account of the dealings between the appellant and the respondent about the matters that were the subject of the charges. The account referred to inspections of the Property and Adjoining Land by officers of the respondent, notices issued to the appellant, the steps taken by the appellant in response to the notices and related matters.
At the plea hearing, the prosecutor sought to hand up the statement of material facts and a bundle of documents. The magistrate correctly pointed out that it was necessary for the prosecutor to read the facts onto the record and added, '[c]an you just give the abridged version'.[1] The prosecutor complied with the magistrate's request, and in doing so, omitted many of the allegations made in the statement of material facts concerning the dealings between the parties. The facts as alleged by the prosecutor in her oral submissions were admitted by the appellant through his counsel.[2]
[1] ts 3.
[2] ts 6.
It emerged in the hearing of the appeal that there were matters alleged in the statement of material facts which the appellant disputed. The appellant's counsel submitted that the prosecution should be remitted to the Magistrate Court to enable the appellant to be resentenced following a trial of issues if the appeal succeeded. However, on being pressed about that submission, counsel for the appellant accepted that his client was concerned about matters that had not been alleged by the prosecutor in her sentencing submissions ‑ they had been included in the statement of material facts but not in the 'abridged version' provided to the magistrate.
The transcript of the plea hearing indicates that the statement of material facts was not provided to the magistrate and it was only the facts alleged by the prosecutor in her oral submissions that were accepted by the appellant. The appellant's counsel provided some further factual context in his sentencing submissions. Those additional matters were not disputed by the prosecutor and were apparently accepted by the magistrate. Accordingly, the facts on which the appellant was sentenced, and on which the appeal is to be determined, are those facts stated by the prosecutor and the appellant's counsel in their sentencing submissions together with:
(a)photographs of the Property, the Adjoining Land and surrounding areas handed to the magistrate by the prosecutor and the appellant's counsel;
(b)a statement provided by one of the occupants of a unit on the Adjoining Land, Mr De Olival, which was handed to the magistrate by the appellant's counsel; and
(c)a character reference for the appellant provided by Mr Peter Schofield which was also handed to the magistrate by the appellant's counsel.[3]
The circumstances of the appellant's offending
[3] The matters alleged in the statement of material facts and disputed by the appellant were an allegation that he had not obtained the consent required by the Building Act; that the appellant had only partially erected temporary fencing following a direction from the respondent; and that further fencing had not been erected and no backfilling had occurred after 23 July 2015 as required by the respondent. As to the first of those matters, the appellant's counsel submitted that the appellant had sought, but not obtained, consent from the owners of the Adjoining Land. That is a fact that formed part of the facts on which the appellant was sentenced and the appeal is to be determined. The remaining matters did not form part of the facts as read by the prosecutor and accordingly, were not facts on which the appellant was sentenced. The allegations are not relevant to the appeal. As the allegations are matters that would exacerbate the serious of the appellant's offending, it is the respondent, and not the appellant, who might arguably have been prejudiced by the fact that the allegations did not form part of the facts on which the appellant was sentenced and the appeal determined.
The appellant was the registered proprietor of the Property. In October 2014, the respondent granted the appellant conditional approval for the development of the Property. The Adjoining Land comprised strata titled lots. It is apparent from the photographs provided to the magistrate that single storey residential units had been built on the Adjoining Land.
The respondent received a complaint that the fence dividing the Property and the Adjoining Land had been removed. An inspection conducted by the respondent's officers confirmed that the fence had been demolished, damage had been caused to the Adjoining Land and a new limestone wall had been partly built along the boundary between the Property and the Adjoining Land. The damage alleged in the relevant charge comprised excavating soil beyond the boundaries of the Property. The photographs provided to the magistrate show that soil had been excavated along a driveway into the Adjoining Land and along and over the boundary between the Property and the Adjoining Land.
The appellant did not obtain the consent of the adjoining landowners to the removal of the dividing fence or to work being undertaken that could adversely affect their land. The adjoining landowners did not give the appellant a written notice to the effect that they consented to the removal of the dividing fence. It is to be inferred from the charges that the reference in the facts alleged by the prosecutor to a notice was to Form BA20A issued by the Building Commissioner.
Photographs taken by an officer of the respondent on 13 July 2015 indicated where the dividing fence had been removed and work on a limestone wall had commenced. The fence line was along the rear of the units built on the Adjoining Land. The width of the limestone blocks meant that a wide trench had been dug along the boundary. The Property was situated on the corner of Scarborough Beach Road, Mount Hawthorn and a side street. The front and sides of the Property were not fenced and the trench was not marked to indicate its presence. Removal of the dividing fence left the rear of the units exposed to a busy street.
The prosecutor stated that there had been 'numerous discussions starting on 13 July and moving onwards with the accused about the removal of the fence'.[4] However, the prosecutor did not provide any further detail concerning those discussions.
[4] ts 4.
In his submissions on sentencing, the appellant's counsel informed the magistrate that the appellant had attempted to contact each of the occupants of the adjoining units prior to commencing construction of the limestone wall. Mr De Olival stated that the appellant had spoken to him in early July 2015 prior to construction of 'his retaining wall' and advised that he was required to notify each of his neighbours that he intended to commence the works. According to Mr De Olival, the appellant enquired whether Mr De Olival 'had any issues' with the appellant performing the works; Mr De Olival stated that he did not and the appellant could proceed with the works.
The appellant's counsel further stated that the appellant had been advised by the respondent that consent for removal of the dividing fence was required in an email sent on 6 July 2015.[5] A document distributed by the Building Commission was attached to the email. It is to be inferred from the submissions made by the appellant's counsel that the respondent's email was sent after officers of the respondent had inspected the Property and the Adjoining Land. The appellant admitted that the dividing fence had been removed by this time.[6] It is also to be inferred that either the email or the attached document from the Building Commission referred to the need to obtain consent using Form BA20A.
[5] ts 6-7. I note that the submission made by the appellant's counsel is consistent with the chronology contained in the respondent's statement of material facts.
[6] ts 6.
On 4 July 2016, officers of the respondent conducted a site inspection of the Property and noted that footpaths on the northern and eastern sides had been badly undermined and damaged by works undertaken on the Property. The appellant was spoken to about the damage on the following day and he agreed to repair the damage the following day. Further site inspections were conducted over the next few days but the damage to the footpath had not been repaired. The damage had still not been remedied when the site was inspected by officers of the respondent on 25 July 2016.
The appellant's counsel submitted that the footpath had been inadvertently damaged by tradesmen moving heavy machinery across the path. That was said to have occurred when the limestone wall was constructed.[7] The facts alleged or admitted in the sentencing hearing did not indicate when the damage occurred, although work on the wall commenced a year earlier.
[7] ts 10.
Photographs taken by the respondent's officers on 4 July 2016 show that a trench had been dug along the northern and eastern boundaries of the Property and along the edge of the footpaths. The damage to the footpath adjacent to Scarborough Beach Road did not appear to be significant but there was a substantial drop from the edge of the footpath caused by the trench. The trench running along the eastern side of the Property had caused significant damage to the adjacent footpath ‑ parts of the path had caved in and much of the path had been substantially undermined by digging to construct the trench. Tape had been strung along the edge of the footpaths to warn of the obvious danger presented by the footpaths; there was no evidence as to when the tape was put in place or by whom.
Ground 2 of the appeal – the conceded error
The magistrate stated that the maximum penalty for each of the offences to which the appellant had pleaded guilty was $50,000. That was an error ‑ the maximum penalties for the offences against s 77 of the Building Act was $25,000 and $10,000 for the breach of s 80(1) of the Act.[8]
[8] In fairness, it should be noted that her Honour repeated the information provided by the prosecutor on the maximum penalties for the offences to which the appellant pleaded guilty.
Failure to take into account the correct maximum penalty for an offence is an error of law.[9] The question then is whether the error caused a substantial miscarriage of justice.[10]
[9] Rodi v The State of Western Australia [No 2] [2014] WASCA 233.
[10] Criminal Appeals Act 2004 (WA), s 14(2).
The Court of Appeal has observed in the context of s 31 of the Criminal Appeals Act that:
The maximum penalty for an offence is an important sentencing consideration. As Gleeson CJ, Gummow, Hayne and Callinan JJ pointed out in their joint judgment in Markarian v The Queen, the maximum penalty is no mere formality. It is an important sentencing yardstick that almost always requires careful attention.[11]
However, some express errors, including an error as to the statutory maximum penalty, may not be material as they were incapable of affecting the sentence that was imposed.
[11] Samardali v The Queen [2018] WASCA 220 [32].
In Wallam v Dent, Jenkins J observed:
I have been unable to find any decision which directly construes s 14(2) in the context of a sentencing appeal. The governing criteria should be that contained in the Act itself; that is, whether the judge hearing the appeal considers that, despite the error in the court below, the appeal ought to be dismissed because no substantial miscarriage of justice as occurred. In the context of a sentencing appeal this will usually require the sentencing court to consider what the appropriate penalty would have been for the offence if no error had been made in exercising the sentencing discretion at first instance. If a lower sentence ought to have been imposed at first instance then the Appeal Court would not be able to exercise the discretion in s 14(2) to dismiss the appeal because no substantial miscarriage of justice had occurred. If, on the other hand, despite the error made in the lower court, the same sentence ought to have been imposed then the discretion in s 14(2) would, in the usual case, be exercised.[12]
In Powell v Tickner, Buss JA (as his Honour then was) considered that a substantial miscarriage of justice will not have occurred where a different sentence should not have been imposed even though it has been found that a sentencing magistrate made an express error of law.[13]
[12] Wallam v Dent [2008] WASC 170 [31].
[13] Powell v Tickner [2010] WASCA 224 [116].
Obviously, there is a substantial difference between a maximum penalty of a global fine of $150,000 and a global fine of $60,000. The difference was, in my view, material in the circumstances of this matter and I consider that a different sentence ought to be imposed when the true maximum penalty applicable is taken into account. Accordingly, I would grant leave to appeal on ground 2, allow the appeal on that ground and set aside the penalty that was imposed.
Grounds 1 and 3 – 6
Ground 1 of the appeal alleges that the magistrate failed to 'properly' take into account the appellant's plea of guilty.
The question of whether s 9AA of the Sentencing Act 1995 (WA) applies when a fine, rather than a term of imprisonment, is imposed has not been finally determined: see the discussion by Pritchard J in Inglis v Pinch [2016] WASC 30. The magistrate referred to the appellant's plea of guilty in this case but did not refer to s 9AA of the Sentencing Act and her Honour did not state the amount, if any, by which the fine imposed was reduced on account of the appellant's plea. However, the appellant did not contend that her Honour had erred by not expressly referring to and applying the provisions of s 9AA.
It is not necessary to determine whether the magistrate ought to have applied s 9AA of the Sentencing Act in imposing a global fine as the penalty for the appellant's offending having regard to the conclusion reached on ground 2 of the appeal. It is, of course, necessary to take the appellant's plea of guilty into account as a mitigating factor in resentencing the appellant. I would only add that the magistrate focussed on the extent to which the appellant's plea of guilty had saved the court hearing time. The magistrate observed that it was difficult for the court to properly utilise the saved hearing time when it had only been informed of the appellant's change of plea 10 days prior to the first trial day. However, it was apparent that the change of plea reflected negotiations with the respondent that resulted in five of the eight charges alleged against the appellant being discontinued. That was a factor that was relevant in considering the timing of the plea of guilty, the benefit derived from the plea and a possibility that the plea reflected genuine feelings of remorse.
Grounds 3 to 6 of the appeal allege that the magistrate either made errors in finding the facts on which the appellant was to be sentenced or failed to give 'proper' weight to factors that mitigated the seriousness of his offending. It is not necessary to deal with the detail of the complaints made in those grounds having regard to the finding made on ground 2 of the appeal. However, in brief:
(a)The magistrate observed that the respondent might not have chosen to prosecute the appellant if he had 'worked with' the respondent to rectify the damage that had been caused to the Adjoining Land and the footpath. That was not necessarily a finding that the appellant had been unreasonable and unrepentant in his dealings with the respondent as alleged by ground 3. In particular, it cannot be concluded that the magistrate found that the appellant had been unrepentant in his dealings with the respondent where her Honour's sentencing remarks are read as a whole. However, it is to be noted that the facts admitted by the appellant included that he agreed to rectify the damage to the footpath on 6 July 2016 but the damage had not been remedied as at 25 July 2016.
(b)I do not consider that ground 3 has been made out. Further, any criticism that her Honour made of the appellant's dealings with the respondent did not cause a substantial miscarriage of justice when the sentencing remarks are fully considered.
(c)There was nothing in the facts alleged by the respondent or in the matters put in mitigation on behalf of the appellant from which it could be inferred that the appellant had made appropriate attempts to obtain the form required for consent to removal of the dividing fence and associated works (ground 4 of the appeal). The appellant's counsel submitted that the appellant had attempted to obtain consent from the occupants of the adjoining units. However, the evidence presented to the magistrate only established that the appellant had obtained the informal consent of one landowner. Again, the allegation made in ground 4 could not, in itself, establish that a substantial miscarriage of justice had occurred.
(d)Comments made by the magistrate about the risk of damage to surrounding property were to be understood in the context of her Honour's comments about the purpose of the relevant provisions of the Building Act (ground 5 of the appeal). Further, the photographs tendered to the magistrate show that the damage to the footpath created a hazard; the works required for construction of the new wall along the boundary between the Property and the Adjoining Land were substantial; the work required for the new wall was to be performed close to the rear of the units constructed on the Adjoining Land; the land sloped so that Property was higher than the Adjoining Land; and there was a considerable amount of soil and some building debris on the Property when photographs were taken in both July 2015 and July 2016.
(e)The gist of ground 6 of the appeal is that the magistrate failed to give sufficient weight to the appellant's claim that the damage to the footpath had been inadvertently caused. An allegation that insufficient weight has been given to a matter will rarely establish that a substantial miscarriage of justice has occurred in the exercise of a sentencing discretion. The allegation in ground 6 of the appeal could not sustain a finding that the sentence should be set aside as a substantial miscarriage of justice had occurred even if it is accepted that the damage to the footpath was not deliberately, or even negligently, caused. That said, it is apparent from the photographs provided by the magistrate that the risk of damage to the footpaths was not caused merely by heavy machinery being moved on and off the Property. The manner in which the trench adjacent to the paths had been dug, particularly on the eastern boundary, undermined the ground support and that appears to have been the primary cause of the damage. The risk of damage to the paths from the construction of the trench, including the lack of support to the trench walls, is obvious from the photographs.
The application for a spent conviction order
Grounds 7 to 9 of the appeal notice alleged that the magistrate erred in not making a spent conviction order, having regard to:
(a)the finding that it was unlikely that the appellant would commit a similar offence in the future;
(b)the further finding that the appellant was of good character;
(c)the nature of the offences which, by ground 9 of the appeal, are characterised as being 'minor regulatory offences';
(d)the fact that no lasting damage was caused;
(e)the appellant's inexperience in 'building matters';
(f)the possibility that the order could impact upon the appellant's future travel plans; and
(g)the effect that not making an order would have on the appellant's 'rehabilitation'.
Section 39(2)(c) of the Sentencing Act permits a court to impose a fine with or without making a spent conviction order. Section 45(1) provides:
Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless ‑
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to ‑
(i)the fact that the offence is trivial; or
(ii)the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
The observations of Murray J in R v Tognini on the exercise of the discretion to make a spent conviction order are frequently cited:
In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre‑conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all of the consequences it may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.
That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction would positively aide that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing for the protection of the community.[14]
[14] R v Tognini [2000] WASCA 31; (2000) 22 WAR 291 [27] – [28].
In Frewen v Dalgreen, Beech J (as his Honour then was) summarised the principles relevant to determining whether a spent conviction order should be made:
Among others, the following propositions emerge from these cases:
(a)the fact that a conviction will be a matter of record, with all the consequences that may entail, should be taken as the ordinary rule;
(b)the discretionary power to make a spent conviction order should be regarded as being of an exceptional character to be sparingly exercised in a clear case; and
(c)in determining whether to exercise that power, the court should consider the seriousness of the offence in the circumstances of its commission and the circumstances personal to the offender.
In determining whether to exercise the discretion to make a spent conviction order, the court should have regard not only to the interests of the offender, but also to the public interest.
One aspect of the public interest is the effect of an order on general deterrence. The prospect of the exposure to public scrutiny of a conviction may have a general deterrent effect.[15]
[15] Frewen v Dalgreen [2014] WASC 407 [18] ‑ [20].
In considering an appeal from a refusal to grant a spent conviction order, the court cannot substitute its own opinion for that of the sentencing magistrate merely because it would have exercised the discretion differently. It is necessary for the appellant to demonstrate that the magistrate failed to properly exercise the sentencing discretion by acting upon a wrong principle, mistaken facts or allowing relevant matters to affect the decision. As Pritchard J (as her Honour then was) observed in Willenberg v Downey:
The question in an appeal of the present kind is not whether the magistrate had a sufficient reason to make a spent conviction order, but rather whether the magistrate's decision involved a material error of fact or law, revealed either by the reasons given, or by implication from the failure to make a spent conviction order.[16]
[16] Willenberg v Downey [2015] WASC 282 [66].
There will also be a House v King[17] error if the exercise of the discretion was unreasonable or plainly unjust. In those circumstances, the court may infer error.
The magistrate's reasons
[17] House v King [1936] HCA 40; (1936) 55 CLR 499.
At the sentencing hearing, the appellant's counsel submitted that a conviction that was a matter of record could adversely impact the appellant's ability to travel. It was said the appellant planned to travel to Italy later that year and he might travel to other countries from Italy.
The magistrate was satisfied that the appellant had been of good character and it was unlikely he would commit an offence of a similar kind in the future. However:
Really, the question is whether you ought to be relieved of the immediate effects that the conviction would have. That is granted on the fact that you have some intention, apparently, to travel overseas in the future, and that there may be some prejudice suffered by you in terms of future travel with respect to having a conviction of this type recorded against you. That ‑ and, also, that you will have the stigma of this particular offence.
I have placed no weight at all on the fact that you might personally find it unpalatable to have convictions of this type recorded against you. These convictions are recorded against you in any event. They do not go away. A spent conviction just means that you may not need to disclose it for the purposes ‑ or for certain purposes, and it is a matter for you to isolate what those purposes are. Ordinarily, I would expect to see something that demonstrates why you should be relieved of the immediate effects beyond mere speculation that a particular country, whatever that might be, might somehow take a view about offences of this type under the Building Act.
And in that sense, Mr Del Borrello, notwithstanding you had no previous convictions, and notwithstanding that you may not commit such offences again in the future, I, simply put, am not satisfied that you ought to be relieved of the immediate effects that the conviction had based on some prospect of overseas travel to a country [which] may or may not take a particular view about these particular offences.[18]
[18] 25 May 2018, ts 18.
Earlier in the sentencing remarks, her Honour correctly emphasised the importance of general deterrence in sentencing for offences against building and planning legislation. The Building Act requires notice to be given to others who might be adversely affected by building works so that there is an opportunity to be consulted about the proposed work and to consent, object or make submissions to the person responsible for the works or the supervising local authority about how the works should be performed. Disputes over dividing fences are commonplace. The experience of the courts is that the disputes can be bitter and protracted and, regrettably, are sometimes the cause of serious acts of violence. The requirement for formal consent to the removal of a fence and its replacement with a new structure is an obvious means of maintaining harmony between neighbours. The penalty imposed for a breach of s 80(1) of the Building Act should reflect the need to deter others from being tempted to proceed to demolish a dividing fence without obtaining the consent of an adjoining landowner.
The magistrate correctly identified and considered the issues relevant to making a spent conviction order. Her Honour had regard to the submissions made by the appellant as to why an order should be made. The appellant's prior good character and the likelihood that he would not offend in the future were acknowledged. No express error in the exercise of her Honour's discretion has been identified and it cannot be inferred that an error was made from the decision to refuse the application. The decision was not plainly unreasonable; and indeed, in my view, the decision was entirely reasonable having regard to the nature of the offences committed by the appellant and a requirement for general deterrence. There was nothing exceptional about the circumstances of the appellant's offending or his personal circumstances that would justify making a spent conviction order.
As to the matters pleaded by the appellant in his grounds of appeal:
(a)I do not consider that the offences are appropriately characterised as 'minor regulatory offences'. As the magistrate emphasised, the requirements for consent under building and planning legislation are important for ensuring that building work is undertaken in a way that is safe, preserves the amenity of the surrounding area and does not unduly inconvenience adjoining land owners and occupants. General deterrence was a significant factor in sentencing the appellant. Personal deterrence was also a factor given that the appellant committed more than one offence, the offences were committed a year apart and the appellant was tardy in complying with the respondent's direction that the footpaths be immediately repaired. The reason for the respondent's direction was obvious from the photographs of the footpaths.
(b)The appellant decided to undertake the development of the Property as an owner/builder. He was responsible for supervising the building works and obtaining all necessary consents and approvals. As the magistrate observed, he was required to inform himself about what consents were required and to ensure that the works did not adversely adjoining landowners. The fact that he had little experience in building matters is not, in my view, a mitigating factor.
(c)Although there was no evidence that any permanent damage occurred as a result of the appellant's building works, the photographs that were tendered show the damage to the footpaths presented a dangerous hazard and the wall along the boundary between the Property and Adjoining Land required a substantial amount of excavation. The wall was constructed close to the rear of the units on the Adjoining Land and the adverse effect of the building work on the surrounding land, private and public, was obvious.
(d)As the magistrate noted, there was no evidence concerning how, if at all, the appellant's convictions under the Building Act would impact on his ability to travel overseas. The submission that it could do so appears to have been merely speculation.
Resentencing
I consider that the magistrate was correct to impose a global fine. I have already identified a number of factors relevant to determining the amount of the fine: the circumstances of the appellant's offending, including the submission made on behalf of the appellant that the damage to the footpaths; the object of the relevant provisions of the Building Act; the maximum penalties for the offences; and some (but not all) of the matters put in mitigation by the appellant's counsel. As to other mitigating factors, it was submitted that the appellant had no prior conviction for contravening the Building Act; he had pleaded guilty to three charges following discussions with the respondent; considerations of totality applied; and the appellant's financial position was such that the imposition of a fine would impose some financial hardship which would serve to reinforce the requirement for specific deterrence and would be, in effect, significant punishment.
I have taken the following matters into account in mitigation of the penalty to be imposed:
(a)The appellant pleaded guilty to the charges following discussions with the respondent that resulted in other charges being discontinued. The change of plea was late but must be considered in that context. The plea saved court time – both in and out of court – for a busy magistrate. It also saved time that would otherwise have been spent in court for the respondent's officers. As I have indicated, the question of whether s 9AA of the Sentencing Act applies to a fine has not been finally determined. To avoid doubt, I indicate that I have reduced the fine that I will impose by $1,000 on account of the appellant's pleas.
(b)The appellant had no previous convictions, was of good character and was unlikely to offend in a similar way in the future.
(c)The fine that I will impose is significant for an ordinary person who does not carry on building work as a business.
(d)The appellant has been ordered to pay significant costs. The fine to be imposed should reflect the factors specified in s 6 of the Sentencing Act. However, as in this case, prosecutions by local government authorities are usually conducted by solicitors employed by law firms rather than police prosecutors and some proportionality should be maintained between 'the total burden of fine and costs, on the one hand, and the offence, or the criminality of the offender's conduct on the other'.[19]
[19] Basham v City of Joondalup [No 2] [2016] WASC 120 [161] (Fiannaca J).
Some emphasis was placed in the sentencing hearing and in the appeal on the fact that the appellant sought to obtain the consent of the owners of the Adjoining Land to the removal of the dividing fence and to the proposed works. There was a suggestion that this may have been difficult because the Adjoining Land had been strata titled. However, the appellant's counsel stated that there were only 10 units and, of course, it was necessary for the unit complex to have a strata manager who could have been a point of contact. The fact that the appellant did not know that he was required to obtain the consent of adjoining landowners is not a matter that mitigates the seriousness of his offending. However, I have taken into account in the appellant's favour that he did not deliberately seek to deny the adjoining landowners an opportunity to object to the removal of the fence or to the works that were proposed.
Finally, the appellant's counsel in the sentencing hearing submitted that the wall was a 'close wall' within the meaning of s 80(2A) of the Building Act and that the appellant was, in substance, only required to give notice under s 80(1)(d) of the Act. However, the contravention alleged by the respondent, and to which the appellant pleaded guilty, was under s 80(1)(a). That is apparent from the allegations made in the charge and which were admitted by the appellant's plea.
In the circumstances, a global fine of $6,000 should be imposed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MB
Associate to the Honourable Justice Corboy20 AUGUST 2019
9
2