Hartwood Logistics Pty Ltd v City of Swan
[2015] WASC 261
•5 AUGUST 2015
HARTWOOD LOGISTICS PTY LTD -v- CITY OF SWAN [2015] WASC 261
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 261 | |
| Case No: | SJA:1067/2014 | 4 JUNE 2015 | |
| Coram: | MARTINO J | 5/08/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Matter remitted to Magistrates Court | ||
| B | |||
| PDF Version |
| Parties: | HARTWOOD LOGISTICS PTY LTD CITY OF SWAN |
Catchwords: | Planning and development Appeal against sentence Reduction for plea of guilty Findings of fact |
Legislation: | Planning and Development Act 2005 (WA) |
Case References: | Abraham v The State of Western Australia [2014] WASCA 151 Moody v French [2008] WASCA 67; (2008) 36 WAR 393 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 Uxcel Pty Ltd v City of Bayswater [2013] WASC 5 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF SWAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M WHEELER
File No : MI 2779 of 2014, MI 2780 of 2014
Catchwords:
Planning and development - Appeal against sentence - Reduction for plea of guilty - Findings of fact
Legislation:
Planning and Development Act 2005 (WA)
Result:
Appeal allowed
Matter remitted to Magistrates Court
Category: B
Representation:
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Mr D P Gillett
Solicitors:
Appellant : Hotchkin Hanly Lawyers
Respondent : McLeods Barristers & Solicitors
Cases referred to in judgment:
Abraham v The State of Western Australia [2014] WASCA 151
Moody v French [2008] WASCA 67; (2008) 36 WAR 393
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
Uxcel Pty Ltd v City of Bayswater [2013] WASC 5
1 MARTINO J: By a prosecution notice dated 26 March 2014, the respondent, City of Swan (the City), charged the appellant, Hartwood Logistics Pty Ltd (Hartwood Logistics), with two offences:
Charge No. 1 of 2
That Hartwood Logistics Pty Ltd (ACN 058 590 104)
On or about 8 November 2013
At Lots 209, 210 & 242, Corvette Road, Bullsbrook
Within the district of the City of Swan on land zoned under the City of Swan Local Planning Scheme No. 17 carried out development without first having obtained the planning approval of the City under Part 9 of the Scheme and hence contravened the Scheme, contrary to Section 218(a) of the Planning and Development Act 2005.
And further
Charge No. 2 of 2
That Hartwood Logistics Pty Ltd (ACN 058 590 104)
Between 14 November 2013 and 15 December 2013, both dates inclusive
At Lots 209, 210 & 242, Corvette Road, Bullsbrook
Within the district of the City of Swan failed to comply with a direction given to it under Section 214(2) of the Planning and Development Act 2005 requiring development undertaken in contravention of the City of Swan Local Planning Scheme No. 17 to stop, contrary to Section 214(7)(a) of the Planning and Development Act 2005.
2 Section 223 of the Planning and Development Act 2005 (WA) (the Act) provides that the maximum penalty for each offence is $200,000 and, in the case of a continuing offence, a further fine of $25,000 for each day during which the offence continues. As Hartwood Logistics is a body corporate, the maximum penalties are five times the penalties provided for by s 223 of the Act.1
3 Hartwood Logistics pleaded guilty to both charges.
4 On 8 September 2014, the learned Magistrate heard the facts of the offending and the submissions of the parties. Both the City and Hartwood Logistics were represented by counsel. The learned Magistrate imposed a penalty of $200,000 on the first charge and a penalty of $200,000, plus a daily penalty of $320,000 calculated at $10,000 a day for 32 days, on the second charge. The total penalty was $720,000.
The grounds of appeal
5 Hartwood Logistics appeals against those sentences. The grounds of appeal, as amended at the hearing of the appeal, are:
Grounds of Appeal
1. The learned Magistrate erred in law by failing to exercise his discretion to decide whether to reduce the head sentences for each of the offences in accordance with s 9AA of the Sentencing Act 1995 (WA).
2. The learned Magistrate erred in law and in fact in finding that the appellant had committed the offences for commercial purposes.
3. The learned Magistrate erred in law in imposing a sentence in respect of the First Offence that was manifestly excessive.
4. The learned Magistrate erred in law in imposing a sentence in respect of the Second Offence that was manifestly excessive.
5. The learned Magistrate erred in law in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances.
6. The learned Magistrate erred in law and in fact in imposing a daily penalty in respect of the Second Offence for each of the days during the period 14 November to 15 December 2013, inclusive, when it was not open to impose a daily penalty.
The facts of the offending
6 The facts of the offending were provided to the learned Magistrate by counsel for the City reading a statement of facts which had been provided to counsel for Hartwood Logistics.
7 The facts provided to His Honour were that Hartwood Logistics was the owner of three lots of land in Bullsbrook. The three lots had a total land area of 6330 m². All three lots were designed as Special Use Zone 7 under the applicable planning scheme.
8 On 8 November 2013 the City received a complaint from another land owner that Hartwood Logistics' land was being developed for what appeared to be a hard stand area. The complainant had informed the City that investigations indicated that the owner of the land proposed to use it as a transport depot. There was no development application to use the land as a hard stand or transport depot.
9 An officer from the City inspected the property on 8 November 2013. The entire land area was in the process of being developed for what appeared to be a hard stand area. The land had been filled, the fill was being compacted and levelled and some areas already prepared as hard stand development. Another inspection took place on 12 November. The development as a hard stand appeared complete. A concrete bridge span had already been placed on the site for storage. A compliance officer contacted Mr John Norrish, the sole director of Hartwood Logistics on 13 November 2013.
10 Mr Norrish agreed that the company had developed the hard stand on the three lots and had placed concrete bridge spans on the lots with the intention of placing further bridge spans for storage on those lots. When questioned as to why the company had not applied for and obtained approval to develop the hard stand on the lots and then use the land for storage purposes, Mr Norrish had said that he did not read the documents provided by his consultant, although he was aware that he would need to make a retrospective application for storage use and the hard stand and development at some stage in the future.
11 The City's officer informed Mr Norrish that he was to cease any further development on the land. Mr Norrish asked if further concrete spans could also be delivered and stored prior to any application being made. He was advised that the City would not approve any further storage use on the land and that the use must cease.
12 Later that day, a further complaint was received by the City that another concrete bridge span had been delivered to and stored on the site. In view of the ongoing breach of the scheme, the City resolved to serve Hartwood Logistics with a formal direction under s 214 of the Act. That direction was served on the Mr Norrish at 3.00 pm on 14 November 2013.
13 On 18 November 2013, the City received a telephone call from a person who said he was acting on behalf of Hartwood Logistics. He informed the City that Hartwood Logistics was not ready to submit an application for development approval relating to the land and the storage use. Officers of the City informed him that the use was required to cease until development approval for the hard stand and storage use was obtained, should that approval be obtained in the future.
14 On 22 November 2013, an application was made for the three lots to be used as a storage yard. In a covering letter, it was stated that the accused was not aware that the development use required development approval. Prior to consideration of the application, the City's officer again attended the site on 4 December 2013. The hard stand area remained in place with low loaders carrying prestressed concrete bridge spans in the process of unloading further spans onto the hard stand area. Investigations by City's officer indicated that the concrete spans had come from a property in Chittering and that the transportation of the loads was directed by Mr Norrish. There were seven concrete spans stored across the three lots. The position was that, notwithstanding the service of the formal direction to cease the use, Hartwood Logistics had simply continued to deliver bridge spans onto the site for storage. Following inspections up to 15 December 2013 which indicated the use on site were simply continuing, the City commenced the prosecution.
15 Counsel for the City then handed up to his Honour a copy of the direction under s 214 of theAct that had been served on Hartwood Logistics on 14 November 2013 and of photographs of the site taken on 8 November 2013, 12 November 2013 and 4 December 2013.
The submissions of counsel
16 After providing the learned Magistrate with the facts of the offences and those photographs, counsel for the City made submissions to the learned Magistrate on the City's views as to the nature of the offending. He did so before counsel for Hartwood Logistics had made a plea in mitigation.
17 Counsel for the City of Swan said:
In relation to the development itself, the City's view of the breach of developing the hard stand and then using the land for an unapproved use on what is a very substantial site, constitutes a blatant commercial decision to undertake development and land use without applying for and obtaining approval on what can only be seen as an attempt to have the commercial use get underway without the time lapse involved in obtaining prior approval. The City finds it difficult to accept that with the development of this scope and this nature, the accused could, in any way, have been led to believe development approval wouldn't be required.2
18 Counsel also informed His Honour that the City felt that it was left in a 'fait accompli situation' where the hard stand development was completed in a relatively short space of time and the use simply commenced once the hard stand was in place. Any attempt to have the hard stand removed would have led to a challenge in the State Administrative Tribunal with the likelihood that the hard stand would have been allowed to stay and the use continue. Eventually, when retrospective approval applications were made, the City issued retrospective approval for the storage yard and hard stand area. Counsel submitted that the Supreme Court has said that retrospective approval may not be a mitigating factor in breaches of this nature with the gravamen of the offence being the failure to obtain approval in the first instance. He submitted that a particular and general deterrent penalty should be imposed reflecting the scope of the development and Hartwood Logistics' refusal to cease upon formal direction to do so being served.
19 Counsel for Hartwood Logistics then made submissions. He provided some information as to the background and business of Hartwood Logistics. He informed his Honour that the company and its sole director, Mr John Norrish, had no previous convictions and he had not been a director of a company that had been convicted of an offence.
20 He informed his Honour that Hartwood Logistics purchased the lots in January 2013 with a view to constructing warehouse units on them, some of which it would use and some of which it would lease to tenants. When the land was purchased it consisted of three vacant adjoining lots on which was located a large amount of excess soil, rubbish, weeds and vegetation.
21 In July 2013, Mr Norrish received a letter from the City requesting that it remove a sea container which was obstructing a thoroughfare on one of the lots. At that time Mr Norrish did not know who owned the sea container and how it came to be obstructing the thoroughfare. He telephoned the author of the letter who informed him that, although Hartwood Logistics may not be responsible for the sea container, it still needed to clean up the land and to prepare all firebreaks before the beginning of October. Hartwood Logistics commenced to take steps to clean up the land. Mr Norrish consulted a town planner regarding the construction of a retaining wall and perimeter fence. In about August 2013 it submitted to the City an application for planning approval for the construction of the retaining wall and the fence.
22 During this period, Mr Norrish had discussions with the town planner he had consulted regarding the City's verbal direction to clean up the land. He was advised by that planner that if porous fill were placed on the site, as opposed to concrete or other more solid materials, a drainage system would not need to be constructed and, therefore, planning approval would not need to be obtained. Mr Norrish understood from his conversations with the town planner that the company would not require development approval to clean up the land, level the soil and place compacted road base on the land.
23 Counsel then referred to Uxcel v City of Bayswater3 where EM Heenan J noted the importance, when imposing a sentence, of determining whether the offence was committed inadvertently or with some credible explanation, or whether, on the other hand, it was committed in brazen disregard of town planning laws. He submitted that the offending by Hartwood Logistics was inadvertent and done with a credible explanation. He submitted that it was not a case of a brazen disregard of town planning laws.
24 Counsel for Hartwood Logistics also submitted to his Honour that Mr Norrish of the company believed that the company could place precast concrete bridge spans on its land without obtaining approval to do so as it was not manufacturing the beams on the land or carrying out any other activity which might produce noise, dust or any other type of emissions that had the potential to affect others in the area. He submitted that it was not unreasonable for Mr Norrish to hold that belief because, if the company had been carrying out some sort of manufacturing or other process on the land, it would not have been in contravention of the town planning scheme for storing goods on its land incidental to that manufacturing or other process.
25 He said that the bridge spans were of such size and length that they could only be transported by oversized vehicles escorted by qualified pilots with approval from Main Roads WA. Mr Norrish was unable to prevent the delivery of a further bridge span to the lots on 13 November 2013 despite being advised by the City on that day that he could not use the lots to store the bridge spans. However, he immediately made arrangements for the remainder of the bridge spans, which had been scheduled to be transported to the lots, to be transported to a yard in Chittering. Hartwood Logistics arranged for an application for retrospective approval to be made for the hard stand development and use of the land as a storage yard. That application was lodged on 22 November 2013. In the days following the lodgement of the development application, Mr Norrish remained in constant contact with the City and was informed on several occasions that the applications would be granted as soon as it could be administratively processed.
26 Counsel then said that unfortunately, on 4 December 2013, the vehicles transporting the bridge spans were turned away from the yard in Chittering because there was no longer enough room for all the bridge spans to be stored there. Mr Norrish made an error of judgement and consented to the trucks, which had been turned away from the Chittering yard, delivering the bridge spans to the land in Bullsbrook. The reason for this error of judgement was that the only alternative to bringing the bridge spans to the land in Bullsbrook on that day was, effectively, to leave them by the side of the road.
27 Once Mr Norrish was informed on 4 December 2013 that the yard at Chittering was full, no further bridge spans were brought to either the Chittering yard or the land in Bullsbrook until 16 December 2013, the day on which the City granted retrospective approval for the hard stand development and the use of the land as a storage yard.
28 Counsel submitted that the contravention of s 214 direction was done with a credible explanation rather than in brazen disregard of the town planning laws. He submitted that due to unforeseen circumstances beyond the control of Hartwood Logistics, the company had no option other than to allow the delivery of the bridge spans to the lots on 4 December 2013.
29 After hearing those submissions, the learned Magistrate asked counsel for the City whether he wished to respond. Counsel for the City said that there seemed to be some difference between what the company knew or should have known. Counsel made the observation that if a town planner told the company that it would not need approval, then doubtless the company would have recourse against that planner. Counsel submitted that Uxcel v City of Bayswater was a very different case to this case. Counsel then said that, apart from the direction, there had been verbal contact with Hartwood Logistics about the need for approval and the need to cease development and, notwithstanding what counsel for Hartwood Logistics had said, the case would appear to be simply a commercial decision to keep going and risk prosecution.
The sentencing remarks
30 The learned Magistrate delivered his sentencing remarks immediately after the submissions of counsel. Those sentencing remarks were:
HIS HONOUR: Okay. This matter comes for sentencing on pleas of guilty where the company admits all the elements of each offences. It is trite that approval has to be obtained for carrying out development. Development is widely defined in the Act. Includes its use. Not only is it accepted that building something is a different kind of development but it's still - they're all defined as development within the Act and I don't, with respect, view this as a minor infringement, although I certainly don't see it as the lower end of the scale. Approval is obtained to build a retaining wall, that was all, and then levelling commenced.
Certainly you can level your land. That's not a use of it, no doubt. That's just development, that's just doing exactly that. However, what came after was - clearly comes with the use definition of development. The photographs indicate on 8 November simply levelling, sand, placed graders and the retaining wall, which had - approval had been obtained. The photo on 12 November indicates the hard stand completed and the machines lying idle. It was ready to go.
It was an unapproved hard stand. As agreed with the prosecutor that if it was done on bad advice, then the recourse was against the organisation or people who gave the bad advice that you don't need a development approval. I can't see how it could possibly (indistinct) been the case. However after that, bearing in mind that the second offence runs between 4 November and 15 December. On the photo of 12 November there's no bridge spans on site. All of a sudden on the next photograph on 4 December, in other words, in contravention of the order to cease, I can see one, two, three, four, five, probably six.
It's been used to store spans for transport. That's a commercial enterprise in a commercial matter and it kept going after being told to cease and desist after the stop order. I don't accept that it's a minor case. I do find that it was - and I will be sentencing on the basis that it was done for commercial decisions. I appreciate the explanations given about the difficulty of having to transport them. That's so be it. But even that a fortiori confirms that the storage of these spans were done for commercial purposes.
They were to be transported somewhere else. The accused company decided it was going to use that property and continue to do so after being told not to. It is something that ultimately is considered as part of the - all the circumstances of the case that approval is subsequently provided but the statute and the law requires nothing to be - the offence is doing things without prior approval and it is of interest only, and if it is mitigatory, it is only extremely slightly that subsequently approval is given.
I accept that the company gives moneys for charitable works. I accept it's got no prior convictions. I don't accept it's at the lower end of the scale. The penalties set by Parliament for breach of these are really high. Massively high and I have to take that into consideration, bearing in mind it's certainly not, at the end of the day, the upper end of the scale. It would not be appropriate to be imposing anything up around the million dollar mark.
But I do feel it's a blatant use and I reject the submissions to the contrary.
On the first count, it will be fined $200,000. It will give the Supreme Court something to look at. The second count; again it doggedly carried on doing what it was doing and didn't stop, because of commercial considerations essentially. That will be another fine of $200,000 and there will be an extra $320,000 extra penalty, being 32 days at $10,000 a day. The penalties are high. They're set high (indistinct) with costs of $1964. That's the judgment of the Court. The Supreme Court can have a look at that one too. Okay. Thank you.4
The pleas of guilty
31 The first ground of appeal contends that the learned Magistrate failed to decide whether to reduce the sentences by reason of the pleas of guilty. While the learned Magistrate noted that Hartwood Logistics had entered a plea of guilty, he did not indicate that the plea resulted in any reduction of the sentence. Counsel for the City on the hearing of this appeal submitted that the learned Magistrate made no reduction to the sentence by reason of the plea of guilty and that it was appropriate to make no reduction because of the minimal, if any, benefit to the State or to any victim or witness resulting from the pleas of guilty and the strength of the prosecution case. He submitted that the prosecution case on each charge was overwhelming, that no civilian witnesses would have been required to prove the charges, that any expenses saved by the City could not be considered a benefit to the State as the City is not the State and that any benefit to the State resulting from the resolution of the proceedings by the pleas of guilty would have been minimal given the simple nature of the offences and the overwhelming strength of the prosecution case in respect of each charge.
32 Section 9AA(2) of the Sentencing Act 1995 (WA) provides:
(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
33 Section 9AA(5) provides:
(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
34 Section 9AA(4) of the Sentencing Act limits the reduction to a sentence by reason of a plea of guilty where the sentence is a term of imprisonment.
35 Section 9AA(5) applies to all sentences where a reduction to the sentence has been given under s 9AA(2). If the court reduces a sentence to recognise the benefits to the State and to any victim or witnesses to the offence resulting from the plea of guilty, then the court must state the extent of that reduction. As the learned Magistrate did not say that there had been a reduction by reason to recognise those matters, I conclude that he did not give any reduction.
36 Prior to the introduction of s 9AA of the Sentencing Act, the Act provided in section 8(2) that a plea of guilty was a mitigating factor. In Moody v French,5Steytler P, Wheeler, McLure and Buss JJA said that under that sentencing legislation, while it was not mandatory for a reduction to a sentence to be given to a sentence by reason of a plea of guilty, in all but the most exceptional cases a plea of guilty will have that result. The Court of Appeal also said that it would necessarily be a very rare case in which, notwithstanding the mitigating effect of a plea of guilty, the circumstances of the offending behaviour are so serious that nothing less than the maximum sentence can be justified.
37 It is yet to be decided whether and, if so, in what circumstances a plea of guilty may not result in any significant discount under s 9AA.6
38 Counsel for Hartwood Logistics accepted that a sentencing court is not required to give a reduction by reason of the plea of guilty. As I did not hear submissions to the contrary, I will accept that is the position.
39 The term 'the State' in s 9AA has a broad connotation.7 In the context of this prosecution, whether or not the City of Swan comes within the meaning of the term, there was a benefit to the State that resulted from the saving of the resources of the Magistrates Court that would have been required if the matter had proceeded to trial. Section 9AA(2) also refers to the benefit to witnesses to the offence. There was a clear benefit to the employee or employees of the City of Swan who were saved from having to take time out of their other responsibilities to give evidence at a trial.
40 The case against Hartwood Logistics was a strong one. This was an appropriate matter to be taken into account in assessing whether a reduction in sentence was appropriate and if so, the extent of that reduction. The fact that the plea of guilty was entered at the earliest reasonable opportunity also warranted consideration.
41 The fines imposed by the learned Magistrate were large. There is no obligation in reducing a fine by reason of a plea of guilty by a percentage, but that is not an uncommon practice by sentencing judicial officers. Even a small percentage reduction in the penalty by reason of the pleas of guilty would have resulted in significant reduction in the amount of the fines.
42 The ground of appeal is not that the learned Magistrate erred in the exercise of his discretion. It is that the learned Magistrate has erred in law by failing to exercise his discretion to decide whether to reduce the sentence by reason of the plea of guilty.
43 I bear in mind that the learned Magistrate was sitting in a busy court and that he did not have the time available to him carefully to prepare detailed reasons. However, there is no reference at all in the learned Magistrate's sentencing remarks to the factors relevant to the exercise of his discretion. Nor is there any reference to the exercise of that discretion. I conclude that the learned Magistrate has failed to exercise the discretion because he failed to consider whether or not he should give a reduction in the sentences imposed by reason of the plea of guilty and, if so, what that reduction should be.
44 This ground of appeal has been made out. Leave to appeal should be granted and the appeal allowed on this ground.
The findings as to the facts of the offending
45 The second ground of appeal relates to the finding that Hartwood Logistics had committed the offences for commercial purposes.
46 If the prosecution seeks to have the sentencing judicial officer take a factual matter into account adversely to the offender, it will be for the prosecution to bring that matter to the attention of the judicial officer and, if the asserted fact is disputed by the offender or the judicial officer is not prepared to act on the assertion, to call evidence about it. The prosecution must prove the matter beyond reasonable doubt.
47 If the offender seeks to have the sentencing judicial officer take a factual matter into account in the offender's favour, it will be for the offender to bring that matter to the attention of the judicial officer and, if the asserted fact is disputed by the prosecution or the judicial officer is not prepared to act on the assertion, to call evidence about it. The offender must prove the matter on the balance of probabilities.8
48 It was clear from the facts provided to his Honour by counsel for the City that there was an issue as to whether the offending had been inadvertent or not. On the one hand, those facts were that Mr Norrish had informed an officer of the City in their first conversation that he was aware that he would need to make a retrospective application for storage use and the hard stand and development at some stage in the future.
49 On the other hand, the covering letter with Hartwood Logistics' application for development approval stated that the company was not aware that the development use required development approval.
50 In this case, the counsel for the City of Swan submitted to the learned Magistrate that the offending was aggravated by Hartwood Logistics making 'a blatant commercial decision to undertake development and land use without applying for and obtaining approval on what can only be seen as an attempt to have the commercial use get underway without the time lapse involved in obtaining prior approval. The City finds it difficult to accept that with the development of this scope and this nature, the accused could, in any way, have been led to believe development approval wouldn't be required.'
51 I understand this submission to mean that Hartwood Logistics knew that it needed to obtain approval but that it made a conscious decision to undertake development and land use without that approval, and that the learned Magistrate should not accept the statement made in the letter with the application for development approval that Hartwood Logistics did not know that it needed development approval.
52 If it were the case that Hartwood Logistics made its decision in those circumstances, that would certainly be an aggravating feature of the offending. However, counsel for Hartwood Logistics made it clear that the company did not admit that was the factual basis of the offending. He informed his Honour that the commencement of the development was inadvertent and based either on incorrect advice from a town planner or misunderstanding of that advice.
53 During the submissions of counsel for Hartwood Logistics, the learned Magistrate made comments from time to time, but those comments do not appear to indicate that he was rejecting the submissions being made.
54 The submissions of counsel for the City, following the submissions of counsel for Hartwood Logistics, were that there seemed to be some difference about what the company knew or ought to have known. These submissions made clear that the City did not accept the factual propositions being put forward by counsel for Hartwood Logistics.
55 The learned Magistrate's statement in his sentencing remarks that he was sentencing 'on the basis that it was done for commercial decisions', that the storage of the spans was done 'for commercial purposes' and that it was a 'blatant use' lead to the conclusion that his Honour accepted the fact put forward by counsel for the City that Hartwood Logistics knew that it needed to obtain approval, but that it made a conscious decision to undertake development and land use without that approval and that he rejected the matters put forward to the contrary by counsel for Hartwood Logistics.
56 In my view, he was in error in doing so. Knowledge and intention are matters of fact. They are not directly proved, but are inferred from facts that are proved or admitted. It may be that, on the facts that were admitted, that the learned Magistrate might have been able to reach the conclusion urged upon him by counsel for the City beyond reasonable doubt. However, before doing so, he had an obligation to give Hartwood Logistics the opportunity to present evidence on that issue.
57 In my view, this ground of appeal has been made out. Counsel for Hartwood Logistics submitted that if I reached that conclusion, then it would be necessary to remit the prosecutions to the Magistrates Court for the appropriate findings of fact to be made. I accept that submission.
Manifest excess and breach of the totality principle
58 By grounds of appeal 3 and 4, Hartwood Logistics contends that the sentences imposed were manifestly excessive. Ground 5 is a complaint that the sentences breach the first limb of the totality principle. In my view, these grounds depend upon the factual basis of the offending for which the company was sentenced. As that factual basis is unclear, it is not possible to determine these grounds.
Daily penalty
59 As I have noted earlier in these reasons s 223 of the Planning and Development Act provides for a fine for each day during which the offence continues. The learned Magistrate therefore had power to impose a daily penalty for the second offence for each day that he found that the offence continued.
60 Counsel for Hartwood Logistics submitted that it was not open to the learned Magistrate to impose a daily penalty as there was no evidence before the learned Magistrate that there had been a failure to stop the development between the period of 14 November 2013 and 4 December 2013 when an inspection by officers of the City showed that the further bridge spans were being unloaded.
61 The direction under s 214 of the Act was a direction to stop and not to recommence 'the Development'. The Development was specified as 'The use of the Land as a storage yard.'
62 When the property was inspected by the City's officers on 12 November 2013, a concrete bridge span had been placed on the site for storage. On 13 November 2013, the Director of Hartwood Logistics admitted that the land was being used to store concrete bridge spans. When officers of the City again attended to this site on 4 December 2013, further bridge spans were being unloaded at the site. In my view, if the learned Magistrate had found that the land was being used to store bridge spans on 12 and 13 November 2013 then the only inference reasonably available to his Honour was that, in the period from 14 November 2013 to 4 December 2013, the land had been used to store the bridge span that was already on the site when the direction was served on 14 November 2013. In fact, the submissions made on behalf of Hartwood Logistics before his Honour appeared to me to accept that was the position. The submission was that there was nowhere else to store the spans. If his Honour had made that finding then he would have been able to impose daily fines for the whole of the period.
63 However, the learned Magistrate does not appear to have found that the land was being used to store bridge spans throughout that period. His Honour said that in the photograph of 12 November there were no bridge spans on site and that all of a sudden, in the photograph taken on 4 December he could see probably six bridge spans. His Honour's statement that on the photograph of 12 November there were no bridge spans does not seem to be correct. While not clear there appear to be bridge spans shown in the photograph. Further, the photograph of 12 November is on a page with the following description:
Unapproved Hard Stand & Stored Concrete Bridge Spans at Lot 209, 210 & 242 Corvette Road, BULLSBROOK.
64 The basis upon which the learned Magistrate concluded that Hartwood Logistics failed to stop using the land as a storage yard in the period 14 November to 4 December 2013 cannot be ascertained from his Honour's sentencing remarks. In fact, he appears to have concluded that Hartwood Logistics did not use the land to store bridge spans for at least part of that period.
65 If that were the position then it would not have been possible to impose a daily penalty for the whole of the period.
66 I conclude that the learned Magistrate has made an error of fact in imposing the daily penalty for the period. As it is necessary for the factual basis of the offending to be ascertained in the Magistrates Court by reason of ground of appeal 2, this factual issue can also be determined in the Magistrates Court during the same hearing.
1Sentencing Act 1995 (WA) s 40(5).
2 ts 5.
3Uxcel Pty Ltd v City of Bayswater [2013] WASC 5 [32].
4 ts 17 - 18.
5Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [33] - [35].
6Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [59].
7Abraham v The State of Western Australia [2014] WASCA 151 [50] (Buss JA).
8R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25].
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