Eros (WA) Pty Ltd v City of Belmont
[2023] WASC 387
•9 OCTOBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: EROS (WA) PTY LTD -v- CITY OF BELMONT [2023] WASC 387
CORAM: HOWARD J
HEARD: 20 SEPTEMBER 2023
DELIVERED : 9 OCTOBER 2023
FILE NO/S: SJA 1040 of 2023
BETWEEN: EROS (WA) PTY LTD
Appellant
AND
CITY OF BELMONT
Respondent
ON APPEAL FROM:
For File No: SJA 1040 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE DE MAIO
File Number : AM 1478 of 2022
Catchwords:
Failure to comply with a notice given under s 214(3) of the Planning and Development Act 2005 (WA) - Contravention of s 214(7) of the Planning and Development Act 2005 (WA) - Whether the Magistrate made an express error - Whether the penalty imposed was manifestly excessive - Leave to appeal allowed on one ground - Appeal dismissed
Legislation:
Criminal Appeals Act 2004 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA)
Planning and Development Act 2005 (WA)
Sentencing Act 1995 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | K G Robson |
| Respondent | : | D P Gillett |
Solicitors:
| Appellant | : | Hay Street Legal |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431
Austrend Construction Pty Ltd v City of Swan [2017] WASC 67
Chong v City of Mandurah [2013] WASC 470.
City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227
Law v The State of Western Australia [2009] WASCA 193
R v Storey [1998] 1 VR 359
Samuels v State of Western Australia (2005) 30 WAR 473
State of Western Australia v Phillips [2023] WASCA 104
Steelmakers Pty Ltd v City of Swan [2014] WASC 449
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81
HOWARD J:
The appellant's conviction and sentence
Following a plea of guilty, the appellant was convicted in the Magistrates Court at Perth for failing to comply between 21 March and 1 April 2022 with a direction given under s 214(3) of the Planning and Development Act 2005 (WA), contrary to s 214(7) of that Act within the City of Belmont (City).
On 18 April 2023, the learned Magistrate imposed a fine of $50,000 with costs of $4,453.
Grounds of appeal
The appellant now seeks to appeal against that sentence on two grounds.
They are:
1.the fine imposed was manifestly excessive; and
2.'the Magistrate rejected matters raised in mitigation without indicating that she did not accept the submissions so as to give the defendant the option of calling evidence to establish those matters and appeared to accept some aggravating submissions raised by the prosecution and contested by the defendant without making findings beyond a reasonable doubt on those points.'
Relevant provisions for this appeal
The appellant seeks to appeal pursuant to s 7(1) and s 8(1)(a)(i) and (iii) of the Criminal Appeals Act 2004 (WA).
By s 9(1) of the Criminal Appeals Act, the appellant requires leave on each its remaining appeal grounds.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[1]
[1] Samuels v State of Western Australia (2005) 30 WAR 473 [56].
The fine imposed was a 'decision' within s 6(f) of the Criminal Appeals Act.
Appellant's material for the appeal
The appellant sought to rely on an affidavit of Douglas Mark Packer made 11 August 2023 with four annexures.
Mr Packer is a director of the appellant and he states that: '[i]n particular, the affidavit supports ground 2 of the appeal'.
At the hearing of this appeal, the appellant clarified that it sought to read Mr Packer's affidavit only if this Court came to re‑sentence the appellant. There was no objection to it being adduced on that basis,[2] and it was so admitted.
[2] Appeal ts 34.
The transcript before the learned Magistrate indicated that she took a bundle of documents from each of the prosecution and the appellant below. They were not marked as exhibits. This Court's efforts to retrieve them from the Court below have proved unsuccessful.
I requested the parties to look at their records and recreate the bundles if they were able. It appears that has not been possible from either side.
In the end, I do not think anything turns on my not having the bundles. They were described at some length in different parts of the transcript below and neither of the parties before me sought to make anything of those materials. I do note that the emails which were some of the annexures to Mr Packer's affidavit were not, I was told, part of either bundle handed up below.
The hearing below
The appellant pleaded guilty on 31 March 2023 and the prosecutor presented the following facts:[3]
[3] 31 March 2023 ts 6 and following.
1.the appellant occupies land at 431 Great Eastern Highway, Redcliffe, Western Australia on which it operates the Redcliffe Tavern (Tavern);
2.in June 2020, the appellant applied for development approval to increase the size of the Tavern, which included a proposed beer garden immediately in front of the Tavern, over what were existing car parking bays;
3.before the development application was approved, the appellant expressly requested the beer garden be removed from the development application;
4.on 19 January 2021, the City approved the amended development application and made plain that the formerly proposed beer garden did not form part of the approval;
5.in July 2021 an officer of the City inspected the premises and saw that brick paving and concrete barriers had been installed over the parking bays in front of the Tavern in the construction of what appeared to be a beer garden area in front of the Tavern;
6.on 19 January 2022 the City gave the appellant a formal notice or direction under s 214 of the Planning and Development Act requiring the pavers and concrete barriers to be removed within 60 days;
7.on 4 March 2022 the City received a request from the appellant's solicitors requesting an extension of time in which to comply with the direction;
8.on 14 March 2022 the City responded and refused the extension;
9.between 16 March and 17 April 2022, inspections by the City showed that the appellant had not removed the concrete barriers or the pavers as required;
10.at 24 June 2022, an inspection showed the appellant had removed the concrete barriers, but rather than removing the paving concrete kerbing had been installed around the brick paving;
11.at 21 July 2022, a further inspection showed there was a bitumen ramp around the edge of the kerbing and line marking for car parking bays over the top of the paving; and
12.at the time the matter was heard before the learned Magistrate the concrete paving, kerbing, etc, had all been removed and the site had been returned as it ought to have been.
The appellant accepted the facts, although took issue with some characterisations of the facts.[4]
[4] 31 March 2023 ts 11.
In addition to the hearing on 31 March 2023, the matter came before the learned Magistrate on 4 and 18 April 2023. On the last occasion, as noted, the learned Magistrate made her sentencing remarks and imposed the penalty.
Ground 2
It makes sense to deal with Ground 2 before considering Ground 1.
The appellant's Submissions state that Ground 2 alleges express error.[5]
[5] Appellant's Submissions [26].
There appear to be two limbs to Ground 2.
The first limb concerned matters of 'mitigation' as submitted in this appeal:
The appellant submitted [below] that it faced several crises that its director was dealing with that contributed to its delay in removing the development. The Magistrate rejected all of them. She was obliged to give the appellant an opportunity to put on evidence before rejecting them.[6]
[6] Appellant's Submissions [26].
The 'mitigating circumstances' which supported the first limb of Ground 2 were said to be:
1.the director's (Mr Packer's) health;[7]
2.the booking of a crane, the crane driver's cancellation and the engagement of contractors;[8]
3.the financial position of the appellant;[9]
4.the construction being carried out because of significant safety concerns;[10] and
5.patrons, and not the appellant, paving the area.[11]
[7] Appellant's Submissions [27a].
[8] Appellant's Submissions [27b].
[9] Appellant's Submissions [27c], [27f], [31].
[10] Appellant's Submissions [27d].
[11] Appellant's Submissions [27e].
The second limb concerned a matter of aggravation as submitted in this appeal:
[The Magistrate] was also obliged to make finding[s] beyond reasonable doubt before accept[ing] contested circumstances of aggravation.[12]
[12] Appellant's Submissions [26].
The matter of aggravation which the appellant says support this second limb is:
[29]The Magistrate found that the development hampered the full use of its car park, which affected not only motorists who wanted to park there, but businesses who relied on their patronage.
[30]… This was an assumption by the Magistrate and one that flew in the face of the appellant's substantiated safety concerns. Mr Packer (the director) had been nearly run down in the carpark.[13]
[13] Appellant's Submissions [29], [30].
At the hearing of this appeal, the appellant indicated that the mitigatory and aggravating factors complained of were, essentially, to be considered together to explain how the learned Magistrate had arrived at the manifestly excessive sentence.[14] Notwithstanding that, the individual complaints need to be assessed before there can be an assessment of them together.
[14] Appeal ts 28-31.
The relevant principles in relation to Ground 2 and the basis on which a sentencing officer must impose a sentence where the offender pleads guilty was set out by Buss JA (as he then was) for the Court of Appeal in Law v The State of Western Australia [2009] WASCA 193 [25] - [34] (McLure and Pullin JJA agreeing). I have not repeated here those principles.
Buss JA agreed with the observations made by the majority of the Victorian Court of Appeal in R v Storey [1998] 1 VR 359, 371 as to the sometimes unclear or ambiguous distinction between aggravating and mitigating circumstances for sentencing purposes. Buss JA stated that:
The essential point of distinction is whether, in a particular case, a fact or circumstance is likely to result in a more severe or less severe sentence than would otherwise be the case [28].
Mr Packer's health
The appellant below addressed the learned Magistrate on Mr Packer's health problems.[15]
[15] 31 March 2023 ts 13, 14 - 17.
Following a review of medical notes which the appellant supplied, counsel for the appellant stated:
… these are by no means an exhaustive survey of Mr Packer's medical history. But in particular, over that offence period, I hope it gives your Honour a sense of the difficulties that he was facing on a personal level.[16]
[16] 31 March 2023 ts 17.
Later, counsel for the appellant said:
You've also seen from some of those medical reports I've taken your Honour to that there is a significant bout of ill health in April 2022, when Mr Packer presents to the emergency department twice and has a number of surgeries.
And I am instructed that wasn't something that came out of the blue but was something that had been building for some amount of time before that. So it was affecting him in March as well, being the period the prosecution notices concerned with.[17]
[17] 31 March 2023 ts 29.
Counsel for the appellant referred her Honour to, amongst others, an email from the appellant (Mr Packer) to the City dated 7 April 2022 and said:
And your Honour will recall this is a period where Mr Packer has just gone for that CT scan and discovered that there was that kidney stone'.[18]
[18] 31 March 2023 ts 31.
No further submissions were made as to Mr Packer's health on 4 April 2023 by the appellant's counsel, nor on 18 April 2023 despite an invitation from the learned Magistrate.[19]
[19] 18 April 2023 ts 3.
The prosecution below did not seek to controvert any of the appellant's submissions as to Mr Packer's health.
The learned Magistrate said in her sentencing remarks:
In regard to the director's health, some medical documentation was produced, but nothing that substantiated a long hospital stay or a long recovery period as outlined by the director in his emails.
The only material regarding his surgery does not support his contention of requiring one to two months recovery period. His surgeon outlines a two week rest and recovery period. So his claims tend to be exaggerated. That is, the director's claim. Certainly in the same emails the director lists all of his work obligations and he seems to have been able to physically maintain a punishing schedule of duties, albeit to exhaustion.
He certainly didn't have to physically remove the construction himself. Indeed, you couldn't possibly remove the concrete barriers by hand.[20]
…
I have no doubt that the director does have health issues and I do not mean to downplay those. But he is not the only director of the company and his health issues did not prevent him from keeping his business going, even under the difficult COVID conditions.[21]
[20] 18 March 2023 ts 10.
[21] 18 April 2023 ts 11.
It appears that the learned Magistrate did consider Mr Packer's health issues but did not think that they significantly went to mitigate the appellant's failure to comply with the City's formal notice or direction.
With respect, I do not detect any error in the way the learned Magistrate dealt with Mr Packer's health issues.
I do not consider that the learned Magistrate needed to give the appellant any warning as was submitted. She accepted that the appellant's director had health issues (the fact asserted in mitigation) but did not accept the weight or force the appellant sought to place on that fact (the submission in support of the mitigation).
As to her Honour's observations that Mr Packer's claims 'tend to be exaggerated'[22], I consider that was an assessment, again, of the force of the submission made. That was in circumstances where the learned Magistrate was assessing the submission made by reference to material relied on by the appellant itself - that is, the relevant medical report and Mr Packer's emails. I consider that the learned Magistrate was entitled to assess that submission by reference to the material the appellant itself supplied.
The booking of a crane etc
[22] 18 March 2023 ts 10.
Counsel for the appellant submitted below:
1.Covid in early 2022 impacted on arranging the crane necessary to come out and move the barriers;[23]
2.in an email to the City, Mr Packer explained that a crane was booked on a Wednesday in March 2022 but they were unable to move the barriers until the ground was broken;[24]
3.the crane booking (after the ground had been broken) 'never came to fruition', although Mr Packer could not remember exactly why that did not it happen;[25] and
4.there was a further email to the City dated 24 March 2022 where the appellant (Mr Packer) told the City he was still trying to arrange a crane to come and remove the barriers.[26]
[23] 31 March 2023 ts 29.
[24] 31 March 2023 ts 20.
[25] 31 March 2023 ts 20.
[26] 31 March 2023 ts 31.
In her sentencing remarks the learned Magistrate said:
The business, seems to me, could have covered the costs of removal by contractors very easily. No where in the material provided to me by counsel do I see any actual bookings for a crane, or cancellation of a crane by the crane driver, or indeed, any emails regarding employing any contactors.
…
There was nothing preventing either Mr or Mrs Packer from arranging contractors to come in and remove the construction. I did not accept that the impediments outlined caused such a delay in complying with the notice to be valid.[27]
[27] 18 April 2023 ts 11.
At the hearing of this Appeal, counsel for the appellant agreed that the material before the learned Magistrate was to the effect that:
1.the appellant did book a crane which came to move the barriers in March 2022;
2.the crane could not lift the barriers at that time because they had got stuck to the bitumen or the paving;
3.the ground then had to get broken before the crane could return;
4.the crane was booked but did not turn up although Mr Packer could not remember why;
5.eventually, the crane did come back and took the barriers away.[28]
[28] Appeal ts 23.
Counsel for the appellant said, then, that the learned Magistrate had been grossly unfair to the appellant to expect that Mr Packer would have a good set of records about his telephone calls or emails about the booking of the crane.[29]
[29] Appeal ts 23.
Again, with respect, it seems to me that the learned Magistrate was assessing the weight of the submission made by reference to the material filed by the appellant.
If, however, the correct characterisation is that the cancellation by the crane operator of a booking was a mitigating fact, then in my judgment it appears that the learned Magistrate simply put it to one side and treated it as not existing for the purposes of sentencing within Law v The State of Western Australia [34].
The financial position of the appellant
As noted, it appears from the transcript below of 31 March 2023 that the appellant handed up a bundle of documents, which included some financial documents of the appellant.[30] At the conclusion of the hearing on 31 March 2023 counsel for the appellant sought the opportunity to put on more up to date financial information and was given an opportunity to do so.[31]
[30] 31 March 2023 transcript.
[31] 31 March 2023 transcript.
When the matter resumed on 4 April 2023, the appellant did not submit any further financial information. Nor did it on 18 April 2023. That was accepted by the appellant at this Appeal.[32]
[32] Appeal ts 27 - 28.
As counsel for the appellant at the appeal hearing submitted, the reason the appellant did not put on any updated financial information below was because the $1.5 million gross profit figure (in the first lot of materials provided) was correct.[33]
[33] Appeal ts 26.
The learned Magistrate said in her sentencing remarks:
It appears to be a popular pub. The tax returns tendered do show a gross income of over $1.5 million in 2019/2020 and I bear in mind this is the gross income.[34]
[34] 18 April 2023 ts 11.
In this appeal, the appellant accepted that the gross income that the learned Magistrate referred to in her sentencing remarks was correct.[35]
[35] Appeal ts 28.
It was submitted initially on the appeal that the error the learned Magistrate made was considering that the appellant 'deserved the penalty of $50,000 because it was financially well off'.[36]
[36] Appeal ts 29.
In my view, that is not how the learned Magistrate reasoned (when regard is had to the transcript below in full). That, also, seemed to be accepted by the appellant at the appeal hearing.[37]
[37] Appeal ts 29.
It does not appear to me that the learned Magistrate increased the appellant's fine by reference to its financial position. With respect, her Honour simply thought the appellant had the financial resources to comply with the notice given by the City. That is, her Honour accepted the fact put to her but appears to have considered the factor to be neither mitigatory or aggravating.
I detect no error in the way the learned Magistrate dealt with the financial position of the appellant.
Patrons and not the appellant paving the area
In relation to patrons and not the appellant paving the area, counsel for the appellant submitted to the learned Magistrate below that:
1.not long after the concrete barriers were installed, Mr Packer became ill again and was away from the business for a little while. A group of regulars decided to arrange and pay for the area to have some paving put in over the top;[38]
2.Mr Packer accepts he could have stopped it and accepts he should have stopped it.[39]
3.the death of one of the regulars who had arranged for the paving contributed to Mr Packer letting it happen, rather than doing something to stop it.[40]
[38] 31 March 2023 ts 22 - 23.
[39] 31 March 2023 ts 23.
[40] 31 March 2023 ts 23.
To the extent that there was a suggestion that the paving was installed for safety reasons, that was not accepted by the prosecution below.[41]
[41] 31 March 2023 ts 36.
The issue of the paving was not further addressed by either side on 4 April 2023.
The prosecution also contended below, on 18 April 2023, that the paving was not only not removed within time but was exacerbated somewhat by (later) having kerbing installed around it.[42]
[42] 18 April 2023 ts 7.
The learned sentencing Magistrate said in her sentencing remarks said:
I do find his explanation as to the existence of the construction to be disingenuous.
Similarly, I regard his claims that patrons decided to pave the area without his knowledge with equal scepticism.[43] (emphasis added)
[43] 18 April 2023 ts 11.
It may be seen that the learned Magistrate in her sentencing remarks dealt with who had done the paving in exactly the same way that the appellant had before her: that is, that patrons other than the appellant had done the paving but with Mr Packer's knowledge.
In those circumstances, I do not detect any error in the way the learned Magistrate considered this issue. She did so consistently with the way it was put to her by the appellant.
The construction was carried out because of safety concerns
In relation to the safety concerns, counsel for the appellant submitted on 31 March 2023:
1.separately to the desire to add a beer garden, Mr Packer was also becoming increasingly afraid for the safety of people having the front section of the tavern and the carpark there;[44]
2.there was an occasion in 2020 when Mr Packer himself was very nearly run over;[45]
3.separately to what was going on with the development application he arranged to have concrete barriers placed in the front part of the tavern;[46]
4.the safety concern had at least kicked off the placing of the concrete barriers and were genuinely held by Mr Packer.[47]
[44] 31 March 2023 ts 19.
[45] 31 March 2023 ts 19.
[46] 31 March 2023 ts 19 - 20.
[47] 31 March 2023 ts 35.
The prosecution below did not accept that the concrete barriers were placed solely for safety reasons[48] because of where they were placed. And, the prosecution described that submission as disingenuous.[49]
[48] 31 March 2023 ts 36.
[49] 31 March 2023 ts 37.
The issue of the appellant's safety concerns were not further addressed below on 4 April 2023 by either the appellant or the prosecution.
The (controverting) safety submission of the prosecution was addressed by the appellant's counsel on 18 April 2023.[50] In response to the further submission, the learned Magistrate, prior to commencing her sentencing remarks, said to counsel for the appellant:
… but it's the configuration of it that really does contradict what your client is saying about safety. I have to say I agree with the prosecution on that. I accept it wasn't operating as a beer garden. I can't accept that it was there strictly for safety reasons, as outlined by your client.[51]
[50] 18 April 2023 ts 7.
[51] 18 April 2023 ts 7 - 8.
Following that, counsel for the appellant sought, and was granted, an opportunity to take further instructions and after a discussion with Mr Packer, which 'took a little while'[52], the appellant did not wish to make any further submissions (nor put on any further evidence) in relation to the safety concerns.
[52] 18 April 2023 ts 8.
In assessing this complaint of the appellant, I think it important to bear in mind that it was not ever put below by the appellant that the construction had occurred solely as a result of Mr Packer's safety concerns. The submission below was that it was a factor.
In any event, the learned Magistrate before sentencing put the appellant plainly on notice that she did not accept that the construction was made strictly for safety reasons.
At its highest, this falls within the sixth principle identified by Buss JA in Law v The State of Western Australia [32] and the appellant did not seek to put on further evidence.
Again, in all of the circumstances, I do not detect any error.
Use of the car park
During the appellant's submissions below, the learned Magistrate stated that there were a number of car bays that were completely out of use as a result of the appellant's development. That was accepted by appellant's counsel below.[53]
[53] 31 March 2023 ts 12.
The learned Magistrate said:
I accept, however, that the area was not in use as a beer garden and it really had no commercial purpose. It was, in fact, an eye sore. It is not, however, a construction on the same level as a domestic one. This construction hampered the full use of the car park, which affected not only motorists who wanted to park there, but businesses who relied on their patronage.
Those car bays were out of use for many months. It is not just an inconvenience to others. It is detrimental to customers and to the businesses. There are planning controls in place to benefit the community as a whole.[54]
[54] 18 April 2023 ts 12.
With respect, the appellant did not identify an error in the way that the learned Magistrate had considered the loss of the car parks in front of the Tavern, and I detect no error.
Disposition of Ground 2
I do not consider that any one of the matters complained of in Ground 2 shows an arguable error on the part of the Magistrate. Nor, do I consider them together as demonstrating any error.
I would not grant the appellant leave in respect of Ground 2 and I dismiss this Ground.
Ground 1
The following general principles applicable to a manifestly excessive appeal are well established.[55]
1.Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or an implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account any relevant matter. Implied error arises where the end result is so unreasonable or unjust that the Court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
2.In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed in respect to it, the place that the criminal conduct occupies in the scale of seriousness for crimes of that type, and the offender's personal circumstances.
3.The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily incomparable cases provide a yard stick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations and relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed incomparable cases reveal and reflect.
Maximum penalty for the offence
[55] See, for example, State of Western Australia v Phillips [2023] WASCA 104 [101(1), (2) and (4)] (Quinlan CJ, Beech & Hall JJA).
By a combination of s 223 of the Planning and Development Act and s 40(5) of the Sentencing Act 1995 (WA), the maximum penalty was a fine of $1 million. While it is, and was, accepted that a daily penalty of $125,000 was available to be imposed, it appears that the learned Magistrate did not impose a daily penalty.
I accept that the maximum penalty was not directed specifically to the offence committed in this case. Rather, it covers a very broad range of offences and offending.
Sentences imposed in other comparable cases
The parties referred me to a number of cases. In the course of argument, it appears that the following three were the most comparable, namely:
1.Austrend Construction Pty Ltd v City of Swan [2017] WASC 67;
2.City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227; and
3.Chong v The City of Mandurah [2013] WASC 470.
It was not submitted that any one of them was completely on all fours with the present case. I have also considered a further judgment below.
Austrend Construction Pty Ltd v City of Swan[56]
[56] Austrend Construction Pty Ltd v City of Swan [2017] WASC 67.
After a conviction following a plea of guilty for an offence under s 218 of the Planning and Development Act where development had been carried out otherwise than in accordance with a condition imposed, the applicant was fined $250,000: [2]-[8].
A planning approval was issued on the condition that no goods were to be stored outside of an existing building. An inspection revealed that a car parking area was being used to store materials in car parking bays. The City requested the company comply with the conditions, but the offending storage continued after another request: [4].
On appeal to this Court, McGrath J accepted that the breach was inadvertent, but said its continuation was commercially motivated: [32].
Instructively, with respect, McGrath J noted at [37]:
There is no established range of sentences for this type of offending. Endeavouring to find a clear pattern of the range of penalties is impeded by the different circumstances in which this type of offence may occur. This includes the period over which the offending may occur … and whether the offender is an individual or corporate.
Tending towards a higher penalty, McGrath J noted the offending had continued for 340 days in circumstances where the appellant had full knowledge of the breach and had received multiple warnings from the respondent: [50]. Further, the continuation of the breach was commercially motivated (as noted above): [32].
There were mitigating factors which McGrath J outlined, being: the applicant had breached the condition initially without any knowledge of the condition: [51]; the breach was not permanent: [52]; the breach had limited impact on other persons (limited to a visual impact, and reduction of on-street parking availability): [53]; and the appellant had no prior convictions and pleaded guilty at the first possible availability: [54].
Further in mitigation, McGrath J noted that upon commencement of the original proceedings, the applicant had commenced rectifying the breach, and had fully done so at the time of sentencing, noting logistical challenges faced by the applicant in being able to immediately comply: [54].
McGrath J set aside the fine of $250,000, and imposed a fine of $40,000: [55].
City of Swan v Bayblue Holdings Pty Ltd[57]
[57] City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227.
After a plea of guilty to a charge of failing to comply with a direction under s 214(3) of the Planning and Development Act, the respondent was fined $300,000 plus a daily penalty for 97 days' non-compliance at $500 a day for a total penalty of $348,500: [1]-[3].
On appeal to a single judge of this Court, the conviction was set aside and an acquittal entered: [5]-[6]. On appeal to the Court of Appeal, it was accepted that the conviction should have been maintained and was re-instated. There was then a re‑sentencing: [57].
A building was constructed on a parcel of land prior to the respondent becoming the owner. After becoming the owner, the respondent had carried out further building works, and then sought retrospective planning and building approval for the further building works: [13] - [15].
During the course of the planning approval process, the other unapproved works came to light and the appellant directed certain works to be rectified under s 214(3) of the Planning and Development Act: [16] - [22].
That direction was not complied with: [23].
Corboy J stated at [110] (for the Court on this point):
I accept the observations of Hasluck J in Swan Bay Holdings[58] and Hall J in Able Lott Holdings[59] on the need to impose a sentence for breaches of planning legislation to reflect the seriousness of the offences and serves as a deterrent to others, particularly where the breach involves a development associated with the commercial use of land. (citations added)
[58] Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 [74].
[59] Able Lott Holdings v City of Fremantle [2012] WASC 431 [73]-[77].
In sentencing, Buss JA and Corboy J both referenced the increased penalty imposed by Parliament for the offence: [60], [106]. However, in mitigation, Corboy J also noted that the respondent had pleaded guilty at the first available opportunity, and the breach was not commercially motivated: [109].
Further, Buss JA considered the mitigating factors outlined by the primary judge: [61], [62]. In these remarks, the primary judge found that the level of culpability was on the relatively low side, primarily due to the work having been completed by the time of the guilty plea.[60]
[60] Steelmakers Pty Ltd v City of Swan [2014] WASC 449 (Kenneth Martin J) [151], [152].
The Court, sentenced Bay Blue to a fine of $17,500 with a daily fine of $100 for a total penalty of $27,200. There were also considerations of totality in that case.
Chong v The City of Mandurah[61]
[61] [2013] WASC 470.
There were two offences under s 218(a) of the Planning and Development Act involving:
1. the use of premises for accommodation when they had been approved for massage therapy; and
2.the display of a sign measuring 800 mm by 3 m.
Both alleged developments had been carried out otherwise than in accordance with a condition imposed: [1].
The penalty imposed for the accommodation offence against the corporation was $50,000 and $2,500 for each of two days by way of daily penalty: [67], with a total fine imposed of $52,500. For the signage offence, the corporation was fined $8,250: [5].
Edelman J (as he then was) noted (as McGrath J had as quoted above) that a review of planning and development offences 'revealed a vast disparity in penalties'. No clear range emerges from the cases, particularly because of the considerable differences between the circumstances of the offending, the time span of the offending, and the language of the particular statutes: [74].
In determining the culpability of the corporate entity, Edelman J accepted that the offending represented a lower level of offending, and noted the following adopted by the learned Magistrate: (1) the breaches were not of a commercial nature; (2) the only aggravating feature was a failure to remove the beds from the premises; and (3) the director had instructed a contractor to remove the beds but failed to check the work had been completed: [80].
However, Edelman J pointed to the strong financial position of the corporate entity as being a 'significant factor' leaning towards the imposition of a sizeable penalty: [82].
Edelman J held that the penalties imposed on the corporate entity were not manifestly excessive: [83].
Able Lott Holdings Pty Ltd v City of Fremantle[62]
[62] Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431.
Able Lott Holdings Pty Ltd v City of Fremantle is somewhat comparable with the facts in this appeal.
The appellant was convicted of four charges:
1.carrying out a development without approval, contrary to s 218(a) of the Planning and Development Act;
2. proceeding with a building without having obtained a building licence, contrary to s 374(1)(a) of the Local Government (Miscellaneous Provisions) Act 1960 (WA);
3.permitting work to be done in contravention of a stop work notice, contrary to s 401A(5) of the Local Government (Miscellaneous Provisions Act); and
4.failing to comply with a direction to stop and not recommence development, contrary to s 214(7) of the Planning and Development Act: [1].
The penalties imposed consisted of fines and daily penalties and totalled $234,000: [3].
The appellant was responsible for the development of a parcel of land for which it had development approval. Construction was not completed by the expiry date of the approval, and the appellant persisted with construction. The City issued a notice to stop work but the construction persisted. A later inspection by the City indicated construction was not in accordance with the plan approved by the City: [5] - [12].
Hall J (as he then was) noted that the appellant had been prosecuted previously for a similar offence (for which it had pleaded guilty at a late stage), and in the present matter had maintained a plea of not guilty: [76]. Similarly, the Magistrate found that the appellant had shown 'utter contempt' for the approval process, further aggravating the matter: [74].
Hall J held that the penalties, while high ([77]), did not manifest an error on the behalf of the Magistrate. Hall J refused leave to appeal on that ground: [78].
As noted repeatedly, the 'comparable' sentences are not of much assistance when considering whether the penalty imposed in this case was manifestly excessive.
Gravity of the offending and the seriousness of the offence
The learned Magistrate in her sentencing remarks said in part:[63]
I accept, however, that the area was not in use as the beer garden and it really had no commercial purpose. It was, in fact, an eyesore. It is not, however, a construction on the same level as a domestic one. This construction hampered the full use of the car park, which affected not only motorists who wanted to park there, but businesses who relied on their patronage.
Those car bays were out of use for many months. It is not just an inconvenience to others. It is detrimental to customers and to businesses. There are planning controls in place to benefit the community as a whole. We are obliged to abide by them, even if they don't accord with our wishes, desires or plans. An individual or a company's interests do not override the interests of the community.
Mr Packer's personal obligations, commitments and health are clearly very important and, at times, overwhelmed him. They don't, however, abrogate his obligation to the opportunity and they certainly don't provide him with a reasonable excuse as to why he did not comply with the notice within the 60 days allowed. The time allowed under the notice was certainly adequate, given the nature of the construction. It could and ultimately was easily remedied.
There must be a clear message of specific deterrence. You do not attend to such notice when you have either the time or the inclination to do so. And if you have to spend money to rectify the wrong, then so be it. There must also be a strong element of general deterrence. If the courts are not seen to support the Council's attempts to rectify building works that are not approved, then the community ultimately suffers.
I take into account the position, as I said, has been entirely addressed and no impediment remains. A substantial fine, however, must now descend, but it ought to be one that can be paid in time by the offender. I do not find that it would be appropriate to suspend the fine. I have had limited documents with respect to the financial position of the business, but it seems to me that this business is not struggling. It brings in a comfortable living.
[63] 18 April 2023 ts 12.
It seems to me, with respect, each of the above matters was relevant to the gravity of the offending and the seriousness of the offence and, with respect, there is no reason for me not to adopt them.
I also accept, as submitted by the respondent, that the seriousness of the offending falls to be considered by the fact that it took a significant period of time for the offending development to be remedied and, indeed, it was not fully remedied for a period of time significantly beyond the prosecution period nominated.
When the transcript of the learned Magistrate's sentencing remarks are considered in full her Honour considered that:
1.breaches of planning laws need to be dealt with seriously;
2.there was an element (to a degree) of the appellant disregarding the City's notice;
3.there was enough time and no excuse for the breach to not be remedied in time;
4.the appellant warranted a sentence of specific deterrence as it appeared there was an element of choice in its non‑compliance with the notice;
5.there needed to be a strong element of general deterrence to support planning controls and legislation.
With respect, I do not consider there is a reason for me not to adopt those as going to the gravity of the offending and the seriousness of the offence.
Appellant's personal circumstances
These have been set out above in consideration of its director's health, the difficulties of trading in Covid and its financial position.
Further, this is a first offence and the appellant pleaded guilty.
Disposition of Ground 1
In all of the circumstances, I consider that the fine imposed may be thought to be at the high end or, even, harsh.
I am not persuaded that it is manifestly excessive so that I might infer error on the part of the learned Magistrate.
I would grant the appellant leave to appeal on Ground 1 but dismiss the appeal.
I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
9 OCTOBER 2023
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