Ehsan v City of Armadale
[2010] WASC 369
•24 NOVEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: EHSAN -v- CITY OF ARMADALE [2010] WASC 369
CORAM: JENKINS J
HEARD: 24 NOVEMBER 2010
DELIVERED : 24 NOVEMBER 2010
FILE NO/S: SJA 1061 of 2010
BETWEEN: FOROUGH EHSAN
DEAN NASSER KHAZE
AppellantsAND
CITY OF ARMADALE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE E K LANGDON
File No :AR 1091 of 2010, AR 1092 of 2010
Catchwords:
Criminal law - Appeal against conviction - Unauthorised development in contravention of Town Planning Scheme - Joint owner of land unaware that development occurred - Joint owner not a party to the offence
Criminal law - Appeal against sentence - Seriousness of offence - Good character of appellant - Spent conviction
Legislation:
Planning and Development Act 2005 (WA), s 218
Sentencing Act 1995 (WA), s 45
Result:
Appeal against conviction by Ms Ehsan allowed
Respondent to pay Ms Eshan's costs fixed at $550
Appeal against sentence by Dr Khaze refused except to the extent that a spent conviction order is granted
Dr Khaze to pay respondent's costs fixed at $2,000
Category: B
Representation:
Counsel:
Appellants: In person
Respondent: Ms A M Wood
Solicitors:
Appellants: In person
Respondent: Kott Gunning
Case(s) referred to in judgment(s):
Brewer v Bayens [2002] WASCA 271
Hogue v The State of Western Australia [2005] WASCA 102
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
JENKINS J: (These reasons were delivered orally and have been edited from the transcript). This is an application for leave to appeal from a decision of a magistrate sitting in the Magistrates Court at Armadale on 3 June 2010. On that date the magistrate convicted both the appellants of an offence relating to unauthorised development on a property in the City of Armadale (the City), contrary to the City of Armadale Town Planning Scheme No 4, (the Scheme) cl 8.1 and cl 11.4 and the Planning and Development Act 2005 (WA) (the Act), s 218. The magistrate fined each of the appellants $5,000 and ordered that they each pay costs of $1,000.
Grounds of appeal
The grounds of appeal in relation to Forough Ehsan are against both conviction and sentence. The grounds of appeal in respect of Dr Dean Nassar Khaze are against sentence only.
The grounds of appeal as specified in the jointly filed appeal notice are that:
1.the appellants misunderstood the court procedure;
2.they received a harsh penalty for a minor offence;
3.they received the wrong legal advice; and
4.the wrong person was convicted.
It has also become clear today that both the appellants say that they were unaware at the time they were sentenced that they were entitled to apply for a spent conviction order. They ask that their appeals against sentence be allowed, that they be re‑sentenced and granted spent conviction orders.
Background
On 21 December 2009, a responsible officer of the City of Armadale issued prosecution notices against both the appellants, jointly charging them that on 19 November 2009 at an address in Roleystone, they, being the registered proprietors of that address, undertook development of a shed, concrete pad and concrete driveway in contravention of the Scheme cl 8.1, and consequently committed an offence against cl 11.4 of the Scheme and s 218 of the Act. The maximum penalty for the offence is a fine of $50,000 for an individual. There is also a daily penalty rate. On conviction, the City did not seek, as I understand it, a daily penalty.
The appellants were self‑represented. When they initially appeared in court, they pleaded not guilty to the offence. They were told by the then presiding magistrate that if they pleaded not guilty, they may incur thousands of dollars worth of costs. I accept that this concerned the appellants, in particular it concerned Ms Ehsan, and that as a consequence of that comment, Ms Ehsan decided to change her plea to one of guilty.
Subsequently, the appellants advised the respondent's legal adviser that they were going to change their pleas. However, they did not then appear in court and plead guilty for some significant period of time. In the meantime they had sought advice from the Citizens Advice Bureau. They were led to believe, as a consequence of that advice, that they would receive a fairly insignificant fine, perhaps of around $1,000, and that there would not otherwise be any particular adverse effects on them from then entering a plea of guilty. They did not appreciate that they would be convicted of a criminal offence. They say, and particularly Ms Ehsan says, that she was reassured in respect to the likely amount of the fine when she attended court and saw that persons who she regarded as being charged with more serious offences received fines of $1,000 or less.
In any event, on 3 June 2010, the appellants appeared in the Magistrates Court at Armadale and entered pleas of guilty. The respondent's legal adviser then read out the following facts to the court:
The accused number one of two, Dean Nassar Khaze, and accused number two of two, Forough Ehsan, were the registered proprietors of [an address], Roleystone ...
On 9 November 2009, after receiving a complaint of unauthorised work on the property, Mr Phil Charles, the City of Armadale's liaison compliance officer, inspected the property and found the following work had been carried out:
1)a concrete slab approximately 6 by 2.5 metres in the top north corner of the block.
2)a concrete slab driveway being constructed in the middle of the block down the eastern side.
3)a trench containing power lines running from the front of the block along the driveway and through the centre of the block, ending at the slab near the top end with a junction box.
4)a trench running from near slab to the eastern boundary, believed to be to channel water in a downpour.
5)a large area excavated near the front of the block where the driveway starts, that the city has been advised is for a dam.
Mr Charles took some photographs of the unauthorised work. As at 9 November 2009, no approvals had been issued for any work on the property, however the accused had lodged an application to erect a shed for storage on the property. At a meeting at the council offices on the same day, Mr Khaze, Mr Charles and attended by two planning officers, Mr Gunthylaka and Ms Jaya Waltadiem. Mr Khaze was advised he was breaching the city's town planning scheme and the city's instructions to cease further work without approval. The meeting ended with Mr Khaze withdrawing his application for an approval for a shed on the property.
On 10 November 2009 Mr Steven Arrowsmith, senior liaison compliance officer at the City of Armadale wrote to the accused, requiring that all work on the property cease. An inspection of the property was conducted on 10 November 2009 and some photographs were taken. A telephone conversation was conducted between Mr Khaze and Mr Phil Charles of the City of Armadale about the letter of 10 November. That telephone conversation took place on 11 November and Mr Charles explained the letter to Mr Khaze.
An inspection was carried out on 12 November 2009 by Mr Phil Charles and Indi Gunthylaka. This showed that all of the trenches had been filled in other than the ditch at the end of the concrete driveway running parallel with the front trench, which had not been filled in. [P]hotographs were taken by Mr Charles.
On 13 November 2009, Mr Khaze was emailed reminding him retrospective approvals for the driveway and concrete slab would need to be sought, and these applications would need to include geotech reports and structural engineer's reports. Mr Khaze responded by email on 13 November 2009, advising he was intending to remove the concrete slab. The person he had purchased the shed from would not refund his funds but would give him credit for another purchase in the future.
On 17 November, following a complaint indicating that a shed had been erected on the property over the weekend. Mr Phil Charles inspected the property, noted that a shed had been erected at the rear of the block just above and alongside the slab recently laid, despite no approval having been issued for this structure. Mr Phil Charles took some photographs of the shed (ts 3/6/10 pages 2 ‑ 4).
The magistrate was provided with some photographs relating to the offence which both depicted the development the subject of the offence and also the rectification of earlier unauthorised development which had taken place on the property.
Dr Khaze then presented some facts in mitigation of sentence. He said that he accepted full responsibility for the construction of the wooden shed. He said that his wife, Ms Ehsan, was overseas during the work and he said that when she was around, he did not normally do these sorts of things.
He said that he wanted to surprise his son for Christmas by putting up what he says was a cubbyhouse and he showed the magistrate a page from the internet which he said showed that it was a cubbyhouse, rather than a shed. He said that he intended to keep a telescope in the shed. He said that he lived in East Perth and was not a farmer. In regard to the driveway he said that he rang an officer from the City. Dr Khaze perhaps did not complete his submissions fully in this regard but it seems that he attempted to tell the magistrate that he thought that on the basis of that conversation that he did not need permission from the City to install the driveway. He also gave some further information about the previous development which had taken place on the property, which I will not go into as it is not relevant to this offence. The magistrate asked Dr Khaze for his financial circumstances. Dr Khaze advised the magistrate that he was a migration agent and that due to a change in rules and regulations, he was not in a good financial situation. He said that he had to give money back to people. He said that he was on a health care card.
Her Honour then asked Ms Ehsan what she wanted to say about the offence. Ms Ehsan told the court that she was out of the country when they - and I assume she was there referring to the City and Dr Khaze - had a meeting about the shed. She said that she was a joint owner of the land but that nobody had explained anything to her, and she complained about the fact that the City had not communicated with her as she thought that they ought to have done with a joint owner.
Ms Ehsan said that when she returned from overseas, the City had told her that she had to remove the shed or put in another development application. She said that she had immediately organised everything and gone to see the builder. She said that she had lodged another application and that that was all she could do. The magistrate asked what her financial circumstances were and Ms Ehsan told the magistrate that she was a housewife, although she sometimes worked in the office. She confirmed that her financial circumstances were 'bad at the moment'. The magistrate then gave reasons for her penalty, and said:
So the council has very strict regulations in place for a very good reason, but I take into account your previous good record and the circumstances in which this offence was committed. Now, you have heard that the maximum penalty is a $50,000 fine and you have heard the prosecutor, Ms Woods, seeking an order for costs in the sum of some five and a half thousand dollars for the work that the council has done.
I have had regard to your early pleas of guilty. The circumstances of the offence and your, I suppose naivety on one level, but one can't really say that you weren't properly informed by the council because there is this exchange of emails and information that went to and fro, and as a landowner it's your sole responsibility to find out what you are able to do and not able to do on that land.
Having regard to those matters and also the principal of parity, which means a penalty that applies to both of you in an equal fashion. You will be both fined $5,000 and there's a costs order which I will ‑ I am allowing costs of $1,000 each, including disbursements on the basis of the amount of fine that I have imposed in light of your financial circumstances. So I have had regard to the fact that you are on Centrelink benefits (ts 3/6/10 page 8).
In support of the appeal, the appellants have both filed affidavits and they also gave evidence before me today. In response, the City has filed affidavits from officers who had contact with Dr Khaze and Ms Ehsan throughout the relevant period. Those officers also gave evidence today.
Ms Eshan's appeal against conviction
A court will be reluctant to allow an appeal against conviction after a guilty plea has been entered. It will only do so where it is satisfied that a miscarriage of justice has occurred. The circumstances in which a miscarriage of justice will occur are not closed. However, they have, generally speaking, been identified. Those circumstances include where there has been a misunderstanding about the nature of the court proceedings or where the evidence shows that the appellant was not, in law, guilty of the offence: Hogue v The State of Western Australia [2005] WASCA 102 [22].
In Ms Ehsan's circumstances I am satisfied that the evidence shows that she was not guilty of the offence as it was charged and as the facts were presented to the court.
I am also satisfied that because of her personal circumstances, they being that English is not her first language and that she was unrepresented, she perhaps did not understand the significance of entering a plea of guilty to the offence where she was of the view that she was not guilty of it. I am also satisfied that she did not understand entirely the elements of the offence and what she was admitting by virtue of her plea of guilty.
In saying this, I understand entirely the court should be loath to permit appellants to change their pleas simply because they are unhappy with the result which they achieved after entering a plea of guilty. There is perhaps a suggestion of that in Ms Ehsan's appeal. Nevertheless, I have had the opportunity to read her affidavits in support of her appeal and to listen to her evidence under cross‑examination and her submissions that she makes to me. I am satisfied that she is a person of entirely good character and that there were a number of circumstances which led to her entering her plea when she was not in fact guilty of the offence as charged and as the facts were presented.
This is not to say that it would not have been possible to lay a charge against Ms Ehsan that she would have been guilty of. But I must determine this appeal on the basis of the charge that was laid and on the basis of the facts that were presented to the magistrate.
I am satisfied that Ms Ehsan, who is married to Dr Khaze, was aware that an application for development approval, that is the erection of the shed on this particular block of land which was jointly owned by the appellants, had been made in September. Indeed, Ms Ehsan had signed the application form. I am also satisfied that she knew that a shed had been purchased or at the very least a deposit had been made by her and Dr Khaze for the purchase of a shed to erect on the land.
I am also satisfied that Ms Ehsan went overseas and was out of the country in November 2009 when Dr Khaze was advised by the City that he could not or indeed that the appellants could not obtain approval to erect a shed on the land because, perhaps amongst other reasons, they did not have a house on the land and the City would not give planning approval to enable a shed to be placed on the land without it being incidental to a residence also being on the property.
Further, I am satisfied that Ms Ehsan was then, in a telephone conversation with Dr Khaze, advised that as there was no planning approval he (Dr Khaze) had withdrawn their application, for planning approval. Finally, I am satisfied that that was really the extent of Ms Ehsan's knowledge about the matter until she returned to Perth on or about 14 November.
Around 14 November, Dr Khaze erected the shed on the land. I am satisfied that Ms Ehsan was not aware that that occurred and that she only became aware that the shed had been erected on the land on 18 or 19 November. Now, it is true that she then became aware that the shed was erected and she then became aware that the City required the removal of the shed from the land.
Ms Ehsan gives an explanation as to why she did not arrange for that to occur, in effect, she believed that the direction from the City was that either it had to be removed or planning approval had to be submitted for the shed. She says that she made arrangements both to see the City officers and to apply for retrospective planning approval. The City's position is that the shed had to be removed and that unless she did she was in breach of the Act and was committing the offence.
That may well be the case, but as I read the charge and the facts as presented to the court, that was not the offence with which she was charged. In effect, she was jointly charged with Dr Khaze with erecting the shed on the land. I am satisfied that she was neither a principal nor a party to that offence. Her evidence to the effect that she did not know anything about the erection of the shed on the land after she was told by her husband that he had withdrawn his application for approval to erect the shed, was very credible.
On that basis, it has been established that the appellant, Ms Ehsan, should not have been convicted of the offence as charged. Simply, because she was a joint owner of the property and had applied for planning approval does not mean that she was guilty of the offence once Dr Khaze erected the shed on the land. There is no evidence, in effect, before me to establish that she was aware that the shed was erected, that she took any part in the actual erection of the shed or that she was a party, in that she aided or abetted or counselled or procured, the erection of the shed on the land. Similarly with the driveway and the concrete pad. On that basis the conviction of Ms Ehsan should be set aside.
Dr Khaze's appeal against sentence
Dr Khaze, in effect, acknowledges that he did the wrong thing by undertaking the development of the shed, the concrete pad, and the concrete driveway. However, he says that in respect to the shed he believed that it would be lawful for him to erect a cubbyhouse on the land and he regarded the shed that he erected to be a cubbyhouse. He says that in respect to the driveway he did not believe that, on the basis of what he had been told by an officer of the City, that he needed approval for the driveway. In any event he thought that it constituted a firebreak. The concrete pad was in effect, as I understand it, a concrete pad for the shed to go on at some later date.
Dr Khaze was told by the City officers that approval would not be given for the erection of a shed on the land. Dr Khaze was very upset about that. He acknowledges to me today that he felt humiliated and abused by the way the City had behaved.
He was particularly upset about the fact that he had spent money, both in purchasing the shed and in activities associated with obtaining approval for development of the shed, for example, paying the fees associated with the application and fees associated with getting experts to organise for the shed to be erected. He felt upset that having done all of that he was then told that right from the start the City would not have granted approval for the shed because there was no house on the land. He did not, and still does not understand why the City did not explain that to him to start with.
All that may be true, but the simple fact is that it is unlawful to undertake development on land unless it is in accordance with a town planning scheme and the approval for the development granted by the relevant local government, unless it is some kind of exempt development. The evidence was quite clearly to the effect that Dr Khaze, being upset with the City's decision, went away and having been told by somebody that he might not require development approval for a cubbyhouse, he deliberately went to the business which was selling him the cubbyhouse and arranged, in effect, for them to describe the shed as a cubbyhouse. With that ruse, so to speak, he decided that he was then erecting a cubbyhouse on the land which did not require development approval.
Those are facts which simply do not go to Dr Khaze's credit. He was trying to get around what he knew was the adverse decision of the City. When he then went ahead and erected the shed, he committed the offence. The facts were really not mitigatory.
Dr Khaze's personal circumstances are mitigatory, he has good antecedents, he is a well‑qualified man, he does not have any prior convictions, and he no doubt has a lot to offer as a resident of this country.
In determining whether a penalty which is imposed in respect to an offence is excessive the court has to take into account matters such as the maximum penalty for the offence, the standard of sentencing for offences of that type and the personal circumstances of the offender.
It is true, as I have said, that Dr Khaze's personal circumstances were in his favour.
In respect to the maximum penalty, as I have said, it is $50,000 and it is a daily penalty of $5,000. A penalty of $5,000 is only 10% of the maximum penalty. As to the standards of sentencing, both the appellants and the respondent have provided to me authorities in that respect. None of those authorities are directly relevant but they show that where there is a commercial element to an offence the penalties are likely to be more significant than where the offence is committed by an individual who is not going to gain financially from the commission of the offence.
There is nothing in the authorities which have been referred to me to indicate that this penalty of $5,000 was manifestly excessive. It may well be accepted that it was at the upper end of the range of appropriate penalties for an offence of this type committed by an offender of the likes of Dr Khaze. However, as I have said, there was not really anything mitigatory in the commission of the offence. Further, as is plain from the evidence that is now before me, the shed has remained on the land. There has also been other development done in respect of the shed, or associated with the shed, which has also not been the subject of approval.
Whilst that cannot aggravate Dr Khaze's offence, because he has not been prosecuted for doing further development, it is not to his credit and it is not mitigatory of the offence that the shed remains there to this day without approval for it being in the place which it is currently in, in its current condition. Taking into account all those matters, I am not satisfied that Dr Khaze has made out his grounds of appeal against sentence so far as the fine that was imposed on him is concerned.
There is then the issue of the appeal against sentence in respect of the spent conviction. The City has indicated today that it does not oppose a spent conviction being granted to Dr Khaze, and that is an appropriate concession. The principles relating to the grant of a spent conviction are well known: Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211, and Brewer v Bayens [2002] WASCA 271.
The power to make a spent conviction order is to be regarded as being exceptional, and it does require convincing evidence. The statutory provisions relating to the grant of a spent conviction are referred to in the above cases. Principally the Sentencing Act 1995 (WA) s 45(1) says it is necessary in order to obtain a spent conviction for the offender to show that the offender is unlikely to reoffend and that the offence is trivial or that because of his previous good character he ought to be relieved immediately of the adverse affects of the conviction.
The offence is not trivial. However, the City does not dispute that Dr Khaze is of good character. Further, I am satisfied that Dr Khaze has learned a very salutary lesson from these proceedings. He is a man without any prior convictions. He is a professional man; he is an intelligent man; he must appreciate, and I am sure he does appreciate, from what has occurred in respect to these proceedings that he cannot undertake development on his land without appropriate approvals.
I am satisfied that these proceedings and his character is such that he is unlikely to commit an offence of this nature again. I am satisfied also that given his personal circumstances, particularly the fact that he is a person who is an immigrant to this country, and therefore as a result of his associations with overseas countries may well want to travel overseas; that his good character is an important factor to him. It is also important to him to enable him to obtain employment in the future. It is appropriate that he be relieved immediately of the consequences of a conviction, and I am prepared to grant him a spent conviction in respect of this matter.
So my decision in respect to Dr Khaze is that his appeal against sentence should be refused, except to the extent that he is granted a spent conviction order.
Costs of the appeal
I order that the City pay the appellant, Ms Ehsan's, costs fixed in the sum of $550 being the cost of legal advice she obtained prior to this appeal. Dr Khaze's appeal is somewhat different. Certainly, he has been successful to the extent that he has obtained a spent conviction. Nevertheless, it has to be said that the appeal in substance was not related to the grant of a spent conviction, but went much further than that. Indeed, most of the time and costs have been spent dealing with matters raised by Dr Khaze, on which he was subsequently unsuccessful.
Taking all these matters into account, my view is that he should be ordered to pay some of the City's costs. Those costs were sought in the sum of $4,431. Taking into account that he was successful to some extent, and so it is contrary to the usual principle that costs will be awarded against him at all, and also taking into account that his financial circumstances are not good, I fix costs in the sum of $2,000. I order that Dr Khaze pay the City's costs of the appeal fixed in the sum of $2,000.