Hunter v City of Joondalup
[2016] WASC 424
•30/11/16
HUNTER -v- CITY OF JOONDALUP [2016] WASC 424
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 424 | |
| Case No: | SJA:1057/2016 | 29 NOVEMBER 2016 | |
| Coram: | PRITCHARD J | 30/11/16 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANDREW JAMES HUNTER CITY OF JOONDALUP |
Catchwords: | Leave to appeal Whether grounds of appeal have reasonable prospect of success Where appellant convicted of contravention of provision of local planning scheme Planning and Development Act 2005 (WA) s 218 Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA) Criminal Procedure Act 2004 (WA) Criminal Procedure Regulations 2005 (WA) Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA) Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2016 (WA) Legal Profession Act 2008 (WA) Official Prosecutions (Accused's Costs) Act 1973 (WA) Planning and Development Act 2005 (WA) Sentencing Act 1995 (WA) |
Case References: | AB v Lloyd [2011] WASC 97 Burns v Urban [2010] WASC 289 Callan v City of Fremantle [2008] WASC 197 Chan v The Queen (1989) 38 A Crim R 337 City of Armadale v Hendry [2013] WASC 422; (2013) 198 LGERA 173 Clay v The City of Nedlands [2012] WASC 402 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 House v The King (1936) 55 CLR 505 House v The Queen [1936] HCA 40; (1936) 55 CLR 499 Hunt v Callaghan [2011] WASC 10 Johnson v Miller (1937) 59 CLR 467 Lizzio v The Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Mack v The State of Western Australia [2014] WASCA 207 Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 Murphy v Spencer [2013] WASC 256 R v Brown (Winston) (1994) 1 WLR 1599 Scolaro v Shephard [No 2] [2010] WASC 271 Stephenson v Treser [2014] WASC 181 Teissier v City of Rockingham [2014] WASC 158 Tey v Plotz [No 2] [2011] WASC 34 Thakrar v Hull [2013] WASC 447 The State of Western Australia v Christie [2005] WASC 214 The University of Western Australia v City of Subiaco (1980) 52 LGRA 360 Uxcel v City of Bayswater [2013] WASC 5 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
CITY OF JOONDALUP
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE E C A DE VRIES
File No : JO 11722 of 2015
Catchwords:
Leave to appeal - Whether grounds of appeal have reasonable prospect of success - Where appellant convicted of contravention of provision of local planning scheme - Planning and Development Act 2005 (WA) s 218 - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Regulations 2005 (WA)
Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA)
Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2016 (WA)
Legal Profession Act 2008 (WA)
Official Prosecutions (Accused's Costs) Act 1973 (WA)
Planning and Development Act 2005 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr T L Beckett
Solicitors:
Applicant : In person
Respondent : McLeods Barristers & Solicitors
Cases referred to in judgment:
AB v Lloyd [2011] WASC 97
Burns v Urban [2010] WASC 289
Callan v City of Fremantle [2008] WASC 197
Chan v The Queen (1989) 38 A Crim R 337
City of Armadale v Hendry [2013] WASC 422; (2013) 198 LGERA 173
Clay v The City of Nedlands [2012] WASC 402
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
House v The King (1936) 55 CLR 505
House v The Queen [1936] HCA 40; (1936) 55 CLR 499
Hunt v Callaghan [2011] WASC 10
Johnson v Miller (1937) 59 CLR 467
Lizzio v The Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mack v The State of Western Australia [2014] WASCA 207
Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405
Murphy v Spencer [2013] WASC 256
R v Brown (Winston) (1994) 1 WLR 1599
Scolaro v Shephard [No 2] [2010] WASC 271
Stephenson v Treser [2014] WASC 181
Teissier v City of Rockingham [2014] WASC 158
Tey v Plotz [No 2] [2011] WASC 34
Thakrar v Hull [2013] WASC 447
The State of Western Australia v Christie [2005] WASC 214
The University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Uxcel v City of Bayswater [2013] WASC 5
Wilson v The State of Western Australia [2010] WASCA 82
- PRITCHARD J:
(This judgment was delivered orally on 30 November 2016 and has been edited from the transcript.)
1 Mr Hunter has brought an appeal against his conviction in the Magistrates Court on 13 July 2016 of an offence against s 218(a) of the Planning and Development Act 2005 (WA) (the Act). Mr Hunter also seeks to appeal against the sentence he received, namely a fine of $16,000, and against the costs order made by the learned Magistrate, namely that Mr Hunter pay $9,653.60 in costs.
2 Mr Hunter requires the grant of leave to appeal in order to be able to pursue the appeal.1 To obtain leave, he must demonstrate that one or more of his grounds of appeal has a reasonable prospect of succeeding.2 To have a reasonable prospect of succeeding, each ground must have a rational and logical prospect of success. That is, it would not be irrational, fanciful or absurd to envisage the ground succeeding.3
3 For the reasons which follow, leave to appeal will be refused on each ground of appeal and, consequently, the appeal is taken to have been dismissed.4
4 In these reasons for decision, I deal with the following matters:
1) The factual background;
2) Overview of the evidence at the trial;
3) Overview of the learned Magistrate's reasons for decision;
4) The grounds of appeal; and
5) Why leave to appeal in respect of each of the grounds of appeal should be refused.
1. The factual background
5 Mr Hunter is the registered proprietor of a property in Mullaloo (the Property), which is located within the City of Joondalup's District Planning Scheme Number 2 (the Scheme). The property is zoned as 'residential' under the Scheme.
6 On 13 October 2015, Mr Hunter was charged with the offence to which this appeal pertains. The prosecution notice alleged that, between 5 August 2015 and 9 September 2015 (the prosecution period), Mr Hunter used 'land within the [Scheme] Scheme Area for the storage of materials without all approvals required by the Scheme having been obtained and issued' and thereby contravened cl 8.10.1(b) of the Scheme contrary to s 218 of the Act. That section provides that a person who 'contravenes the provisions of a planning scheme … commits an offence'.
7 Clause 6.1.1 of the Scheme provides:
The Council's Planning Approval is required for any development on or partly on any land zoned or reserved under the Scheme other than development referred to in subclause 6.1.3, and with those exceptions no person shall commence or carry out any development unless the Council's approval has first been obtained.
8 The word 'development' is defined in the Scheme as follows:
Development: shall have the same meaning given to it in and for the purposes of the [Act]...
9 The Act defines 'development' as 'the development or use of any land, including: any demolition, erection, construction, alteration of or addition to any building or structure on the land; the carrying out on the land of any excavation or other works' and certain changes to properties the subject of conservation orders under the Heritage of Western Australia Act 1990 (WA).5
10 In addition, it is relevant to note that cl 6.2.1 of the Scheme provides that:
For the purpose of the Scheme the commencement, carrying out or change of a use on land shall be a development notwithstanding that it does not involve the carrying out of any building or other works.
11 The word 'use' has a variety of meanings depending on the context in which it is used, and whether it is used as a noun or a verb. When used as a noun, its meaning includes 'the act of employing or using, or putting into service', 'a way of being employed or used, a purpose for which something is used' and 'the enjoyment of property, as by employment, occupation, or exercise of it'.6
12 In the context of a statutory planning scheme similar to this case, the word 'use' has been given its ordinary meaning as comprising 'activities which are done in … or on the land but do not interfere with the actual physical characteristics of the land'.7
13 That 'development' under cl 6.1.1 of the Scheme encompasses the way the land is used, and the activities conducted on it, is also confirmed by the nature of the developments for which Council approval is not required under cl 6.1.3, some of which refer to the use of the land for particular activities or purposes.
14 In short, under cl 6.1.1, any development of land - which includes the activities undertaken on the land, notwithstanding that those activities do not involve the carrying out of any building or other works - requires Council approval, other than for those developments referred to in cl 6.1.3. Accordingly, unless the way the Property was being used in this case fell within one of the exceptions in cl 6.1.3, the Council's approval was required.
15 Relevantly, subclause 6.1.3(c) provides that:
The Council's prior Planning Approval on land zoned by the Scheme is not required if the development consists of:
…
(c) the use of any buildings or land within the curtilage of a dwelling for any purpose incidental to the enjoyment by the occupants of the dwelling as such;
…
16 The word 'curtilage', in relation to a dwelling, is defined in the Scheme as follows:
[T]he yard of the dwelling; or an area in the immediate vicinity of the dwelling, situated on the same lot as, and used for purposes ancillary to, the dwelling. The curtilage shall not include the area located between the frontage and the dwelling. The term shall have a like meaning in relation to land around buildings other than dwellings.
17 The word 'dwelling' is defined in the Scheme to have 'the same meaning as that set out in the Residential Planning Codes'. I understand that meaning of the word 'dwelling' refers to, in effect, a use of land by the occupants as a residence.
18 The effect of cl 6.1.3 is that Council approval is not required for a development (including a use) of land which is reasonably incidental to the enjoyment of the land as a dwelling (that is, its residential use) by the occupants.
19 Clause 8.10.1(b) of the Scheme provides that:
No person shall depart from or permit or suffer any departure from the requirements and provisions of the Scheme, nor shall any person use or suffer or permit the use of any land or building, or undertake or suffer or permit the undertaking of any development, within the Scheme Area:
…
(b) unless all approvals required by the Scheme have been granted and issued;
...
20 As it emerged at the trial, the City's case was that Mr Hunter had stored large quantities of materials at the Property, which could not be described as being reasonably incidental to the residential use of the land.8 Counsel for the City submitted that the nature of the materials being stored on the Property included things such as 'scrap metals, disused bikes, a number of vehicles, large quantities of scrap metal … junk and other assorted materials … disused building materials, tools, various items…'.9
21 The City's allegation was that the nature and quantity of the materials being stored at the Property were not incidental to the ordinary residential use of the Property. It alleged that Mr Hunter did not have Council approval to use the Property in that way.
2. Overview of the evidence at trial
22 At trial, the City led evidence from three officers of the City, Ms Hoskisson, Ms Eliades and Mr Etherington, each of whom had attended the Property on a date within the prosecution period. Their evidence established, and it was not contentious, that Mr Hunter is the registered proprietor of the Property; that he resides at the Property; that the Property is zoned for residential use; that there is a house on the Property; and that the only approval of the Council for a development at the Property was a planning approval to erect a boundary wall at the Property.
23 For present purposes, the evidence of the City's witnesses was that there had been complaints concerning Mr Hunter's storage of materials at the Property and its unsightly appearance going back to 2009.10 There had been numerous conversations between Mr Hunter and City officers, including the witnesses, regarding requests to clear the land of the materials.
24 Mr Hunter had given various explanations at various times for the storage of the materials on the land, including that he collected the materials from verge collections and then stored them on the land;11 that he intended to use the materials for other purposes or to make other things;12 or because they were related to his hobbies;13 or that he was storing materials for use in a renovation of his home that he wanted to carry out.14
25 Ms Hoskisson attended the Property on 8 July 2015. She met Mr Hunter at the Property and he refused access on that occasion. On 28 July 2015, Mr Etherington wrote to Mr Hunter informing him that an inspection would be carried out on 5 August 2015. On that date, Ms Hoskisson and Ms Eliades carried out an inspection of the Property. A police officer was present.
26 Ms Hoskisson's evidence was that:15
Mr Hunter originally wasn't happy for [the City] to do the inspection and the police spoke to him and he agreed that we could carry out the inspection…
27 Ms Hoskisson's evidence of that inspection was that she saw that the Property was being used for the:16
[S]torage of a large amount of disused materials, building materials, metal objects, vehicle parts, pipes, ladders, roller garage doors, so many items that I wouldn't be able to list them… There [were] two cars actually stored one on top of the other... there's lots of tyres, wheels...
28 Photos were taken by Ms Eliades during the 5 August 2015 inspection. Those photos (which were in evidence at the trial)17 amply depicted the storage of a very large volume of materials of various kinds, and of vehicles, in the front yard, the two garages and in the rear yard of the Property. Ms Hoskisson's evidence was that on previous occasions, and on this occasion, Mr Hunter had been told he had to remove the materials from the yards of the Property. She said that they had not given him a list of things to remove as there were too many items to list.18
29 Ms Eliades' evidence also was that they had not listed the materials to be removed because there were so many materials.19 She described the Property as looking like a salvage yard.20
30 Mr Etherington's evidence was that his suggestion had always been that Mr Hunter should remove 'everything from [his] property'21 and that he should 'get rid of all [his] stuff from the front and the back yard'.22
31 After the first inspection, Ms Hoskisson sent Mr Hunter a letter dated 13 August 2015,23 in which she advised that storage of materials at the Property was an unlawful use of the land and that the City requested that he cease storing materials at the Property within 28 days, failing which, the matter would be referred to City's solicitors for further action.
32 Ms Hoskisson returned to the Property on 9 September 2015, together with Ms Eliades and Mr Etherington. (That was, in fact, 27 days later as it appears there was some confusion about when the 28 day period would be up.24) Ms Hoskisson's evidence was that the appearance of the Property was not different to its appearance at the time of the inspection on 5 August 2015, other than that certain materials had been moved around.25 She said they had a lengthy conversation with Mr Hunter in which he said it would 'break his heart to have to get rid of the stuff'.26 They also discussed how he could reduce materials at the Property by stopping bringing more items home.27
33 Ms Eliades took photos on that occasion, which were in evidence.28 Those photographs, again, amply depict the storage of very significant quantities of a variety of materials, and vehicles, in the front yard, back yard and garages of the Property. In Ms Hoskisson's evidence and Ms Eliades' evidence, they confirmed that the materials stored in the front yard could be seen from the street.29 That is apparent in the photos.
34 Mr Hunter did not give evidence himself. He called two witnesses.
35 His first witness, Mr Eyre, was an officer in the compliance department at the City at some stage and had had dealings with Mr Hunter about five years before the trial.30 He gave evidence as to the nature of the issues with Mr Hunter. Mr Eyre said: 'I guess you could term it as hoarding, which I believe [Mr Hunter] also said [himself that he has] an issue with.'31 Mr Eyre told the learned Magistrate that:32
He actually stated to me that I believe I do have a problem with hoarding and I can't stop myself from seeing a bargain and buying it.
36 Mr Hunter also called a Mr Brouwer, who had been a neighbour of his for about a year prior to 2015. Mr Brouwer's evidence was that there had not been any effect on his health, safety or convenience as a result of Mr Hunter's property being untidy and messy.33 He also gave evidence that in the period after the first inspection, he had given Mr Hunter some assistance to remove materials from the Property and that they had removed about two or three trailer loads of materials that they had thrown away,34 but that there was still roughly the same amount of items at the Property throughout that period.35
37 Mr Brouwer agreed that he had seen Mr Hunter bringing other items onto the Property.36 Mr Brouwer's evidence was that he could see the items being stored in the front of the Property from his own property, and from the road, but that that did not bother him.37
3. The learned Magistrate's reasons for decision
38 At the conclusion of the trial, the learned Magistrate delivered his reasons ex tempore.38 He began by outlining the evidence of the witnesses and he accepted the evidence given by each of them. The learned Magistrate found that the City had proved beyond reasonable doubt that Mr Hunter was, at all material times, the owner of the Property; that the Property was within the boundaries of the Scheme; that the Property was zoned residential; and that Mr Hunter resided at the Property.39
39 The learned Magistrate then noted Mr Hunter's explanation for his storage of the materials at the Property, which was that the items were for use in building at the premises in the future, or for hobbies. However, his Honour found that that explanation was 'both nonsensical and fanciful', having regard to the photos which were in evidence. He accepted that those photos depicted that the Property resembled a salvage yard.40
40 Although he accepted that Mr Hunter had made some effort to remove some of the materials between 5 August and 9 September 2015, he noted that 'simply moving them from one part of the yard to another really has done nothing to resolve the problem'41 and that 'very little had changed' in the prosecution period.42
41 The learned Magistrate then turned to consider whether the storage of the materials at the Property could be regarded as incidental to the enjoyment by the occupier of the premises, and concluded that that could not be said in this case. His Honour referred to some of the authorities on this issue, to which I will return in a moment, and found that:43
[T]he storage of this amount of material is far out of line with the manner in which the storage of materials is normally practised, and [that] it simply cannot be regarded as being part of the ordinary residential use [of the Property].
42 Accordingly, the learned Magistrate concluded that he was:44
[S]atisfied beyond a reasonable doubt that Mr Hunter was at all material times the owner of [the Property], that those premises are within the boundaries of the City under the [Scheme], that the premises are zoned residential, that [Mr Hunter] resided on the land, that [Mr Hunter] used the said premises for the storage of materials, that [Mr Hunter] did not have the requisite approvals for that storage on the premises, and I find the charge proved.
43 The learned Magistrate then heard submissions from counsel for the City and from Mr Hunter in relation to the sentence which should be imposed. Although the learned Magistrate did not give separate reasons for the sentence imposed, it is apparent that he accepted the submissions advanced by counsel for the City, particularly those concerning the need for general and specific deterrence, in view of prior convictions Mr Hunter had for similar offences and the fines that had been imposed in respect of those offences.45 The learned Magistrate imposed a fine of $16,000.
44 The learned Magistrate also awarded costs to the City in the sum of $9,653.60. Again, although no separate reasons were given, it appears that the learned Magistrate accepted the submissions of counsel for the City that those costs had been incurred, were reasonably sought, and were drawn from the scale of costs applicable to costs orders in those circumstances.46
4. The grounds of appeal
45 An appeal may be brought against a decision of the Magistrates Court on grounds that the court made an error of law or fact, or both; that the court acted without or in excess of jurisdiction; that the court imposed a sentence that was inadequate or excessive; or that there has been a miscarriage of justice.47 Mr Hunter's grounds of appeal, as set out in his notice of appeal filed 9 August 2016, were as follows:
1. Fines and costs. The severity of the fine is unreasonable. The City of Joondalup (I believe) did not produce any victims or hardships or inconveniences to other residents or themselves. The Magistrate awarded the City of Joondalup's lawyer full costs. This, I believe, is very unreasonable with usual amounts being 40-50% or in section 5 of the Official Prosecutions Act (section 252).
2. The City of Joondalup's lawyer (Mr Beckett) was asked to supply me with details of the charge. Mr Beckett supplied me with photos with the subject being "untidy land" (47 pages) and three "summary of evidence" documents from Vic Etherington, Tracey Eliades and Heather Hoskisson. All [City of Joondalup] employees.
3. In those documents (summary of evidence - Vic Etherington) I was accused of using my property as a salvage yard (section (P)).
4. The City of Joondalup has never raised this issue or any concern with me. In court the issue wasn't raised, except by me, and definitely not proven. When I tried to use those documents in questioning the witnesses, the Magistrate informed me I could not address what was written in them as they had been written by their lawyer.
5. I believe Mr Beckett did not provide me with details of the charge in a proper and reasonable way.
(a) The documents did not explain the charge.
(b) The documents were not able to be used in court.
(c) Some of the photos were taken inside my building(s) and are not relevant.
6. The City of [Joondalup] demanded entrance to my property in a bullying and unreasonable way
(a) Involving WA Police.
(b) Showed no proof of complaints, health, safety or hardship to anyone.
(c) After first demanding "entrance to my property" I replied, by asking for time to proceed with my home improvements. The City replied by demanding access to my property, outbuildings, sheds and inside my house and threatening with health inspectors and police.
7. When the City of [Joondalup] inspected my property the first time, there was no discussion on what I was doing "illegally" or what "materials" should be moved. There was also no mention of contravening this planning scheme. The City then sent me a letter giving me 28 days to remove "materials". Again no mention of what materials. The City returned on the 27th day to reinspect property, then took legal (court) action. Again no discussion on "materials".
8. I was never given the opportunity to appeal these requests from the City of [Joondalup].
9. It was never explained, the charge of "contravening the provisions of planning scheme". Even in court, the explanation of the charge was not explained clearly until the end of the day, after all witness had been called and excused, therefore not giving me the opportunity to question them properly over the true meaning of all of the allegations.
10. I do not believe any witness proved beyond reasonable doubt that I was using my property for anything other than domestic, residential purposes.
46 In addition, supplementary grounds of appeal were set out in a document prepared by Mr Hunter and dated 5 November 2011 (the supplementary grounds of appeal) as follows:
1. City of Joondalup methods, actions and conduct.
I believe they were in no way clear, descriptive, apparent or clear in what was 'illegal' or what was expected of me to comply with their request or order.
I believe [the City's] officers were deliberate in their actions of not being clear and not explaining anything in order to prosecute me and hopefully 'financially cripple me' as threatened on two occasions by the City of Joondalup Officers.
2. Mr Beckett was ordered by Magistrate G Smith (5 Feb 2016) to 'provide me with all material' before the trial allocation date. To clarify what I was being charged with.
3. The material Mr Beckett supplied, ie: all written information, I was not allowed to use in court to question witness's or refer to anything in those documents. Leaving me disadvantaged in my defence. The photos from prosecutors were allowed.
4. Magistrate De Vries did not give me the opportunity to cross examine my witness.
5. The Court and City of Joondalup accepted that I had removed three trailer loads of material within the 28 day period.
6. I was given notice that The City would reinspect my property 'after 28 Days', The City Officers came back on the 27th day.
7. The City of Joondalup has twice refused building plans I have submitted that would have tidied my yard as most of the 'materials' being stored were for those projects. Since this conviction the City has approved the same plans they previously refused.
8. The City of Joondalup is fully aware of my personal and financial situation as a single father … and are fully aware of my plans to improve my property, in my situation I have had to acquire materials over time, The City has never raised any issue about me storing materials or applying for permits to store materials.
5. Why leave to appeal in respect of each of the grounds of appeal should be refused
47 It is convenient to deal with the grounds of appeal by reference to the broad themes with which they deal.
(a) Why leave to appeal on grounds 2, 3, 4, 5 and 9 of the grounds of appeal and ground 2 of the supplementary grounds of appeal should be refused
48 These grounds, in essence, contend that Mr Hunter was not given adequate particulars of the charge or the evidence to be led in support of it, and that the case against him was not made clear until the City's counsel made closing submissions at the trial. These grounds, as expressed in the grounds of appeal and the supplementary grounds of appeal, do not fall squarely within the grounds of appeal permitted by s 8 of the Criminal Appeals Act 2004 (WA) (CA Act). However, I have understood these grounds as amounting to a contention that there was a miscarriage of justice because Mr Hunter's trial was unfair.
49 Having carefully considered the submissions made by Mr Hunter, I have concluded that he has no reasonable prospect of succeeding on these grounds, for the following reasons.
50 There is no doubt that an accused's right to disclosure of the prosecution case is an inseparable part of his or her right to a fair trial.48 A fundamental aspect of a fair trial is that an accused person must have a reasonable opportunity to know, not only the legal nature of the offence with which he or she is charged, but also the particular act, matter or thing alleged as the foundation of the charge.49 An accused must know the particulars of a charge and the evidence to be led in support of it. However, the accused is not entitled to particulars which descend into the facts in minute detail or which would prevent the prosecution from seeking to prove a charge on the basis of alternative factual scenarios (provided those factual scenarios are not fundamentally inconsistent).50
51 As I have already observed, Mr Hunter contends that he was not made aware of the essence of the charge until the closing submissions of counsel for the City at trial. In response to that contention, the City sought to rely upon an affidavit of Timothy Luke Beckett, sworn on 10 November 2016. In my view, the City should have leave to rely upon that affidavit.
52 In his affidavit, Mr Beckett deposed that he appeared on behalf of the City at the Magistrates Court on 5 February 2016, on which date the court made an order for the prosecution to give disclosure to Mr Hunter by no later than 25 March 2016. On 21 March 2016, the solicitors for the City wrote to Mr Hunter and provided documents by way of disclosure in accordance with those orders. Annexed to Mr Beckett's affidavit was a copy of a letter dated 21 March 2016, which listed the documents that were provided by the City to Mr Hunter by way of disclosure under cover of that letter (the disclosure documents) as follows:
1. Summaries of evidence for Heather Hoskisson, Tracy Eliades, and Vic Etherington.
2. Certificate of Title for [the Property].
3. Photographs of property dated 5 August 2015 (x 47 pages).
4. Photographs of property dated 9 September 2015 (x 26 pages).
5. Planning approval dated 7 March 2008.
6. Letter from City of Joondalup dated 9 June 2015.
7. Letter from City of Joondalup dated 8 July 2015.
8. Letter from Andrew Hunter dated 13 July 2015.
9. Letter from Andrew Hunter dated 5 August 2015.
10. Letter from City of Joondalup dated 12 August 2015.
11. Email from Andrew Hunter dated 10 September 2015.
53 Mr Beckett deposed that on 1 April 2016, Mr Hunter confirmed that he had received the disclosure documents listed in the 21 March 2016 letter and advised the court that he would maintain his plea of not guilty, as a result of which the charge was listed for trial. Mr Beckett also deposed that, between 21 March 2016 and 12 July 2016, he had a number of conversations with Mr Hunter in relation to unrelated proceedings in another forum and, during that period, Mr Hunter did not make any requests for further disclosure or further particulars in relation to the charge the subject of the prosecution notice.
54 Mr Hunter did not dispute that he had been provided with some of the documents listed in the 21 March 2016 letter, namely the summaries of evidence to be given by Ms Hoskisson, Ms Eliades and Mr Etherington, and the photographs of the Property from the inspections on 5 August 2015 and 9 September 2015. In the course of oral submissions, Mr Hunter said that he was unsure whether he had been provided with all of the disclosure documents, and in particular he was unsure whether he had received copies of the correspondence referred to. However, he admitted that he had seen copies of that correspondence, not the least because the letters in question originated from him or were sent to him by the City on earlier occasions. It is in view of those concessions that, in my view, it is appropriate to give the City leave to rely upon the affidavit.
55 One of the key documents referred to in the 21 March 2015 letter, which is said to have been provided to Mr Hunter by way of disclosure, is the letter dated 13 August 2015, which was in evidence.51 That letter was sent to Mr Hunter by Ms Hoskisson following the inspection of the Property by the City on 5 August 2016. It is useful to set the terms of that letter out in full:
UNLAWFUL LAND USE – [the Property]
Further to our inspection of 5 August 2015 regarding the storage of materials at the property at [the Property].
We would advise that an unlawful use of land is a breach of District Planning Scheme 2 and as such is an offence under Section 218 of the Planning and Development Act 2005. The maximum penalty for a breach of Section 218, pursuant to s223 of the Planning and Development Act 2005, is $200,000 and a daily penalty of $25,000 for each day during which the offence continues.
The City is hereby requesting that you cease storing materials at the property within 28 days from the date of this letter. As inspection of the property will be carried out after this time to ensure that you have complied with this request.
If the materials have not been removed and the City considers that the land remains in breach of the District Planning Scheme then the matter will be referred to the City's Solicitors without further notice.
56 Also in evidence was an email sent by Mr Hunter to Ms Hoskisson on 10 September 2015.52 In that letter Mr Hunter said (by reference to the inspection that had been conducted on 9 September 2015):
I was totally surprised at you and your colleagues not recognising the improvements and materials removed from my property since your last inspection. Considering the amount of time you gave me and the way you didn't list anything in particular. During the visit I was informed that you were requesting everything on my property has to be removed (not related to my house). This was overwhelming to me and I find it hard to understand how this can be expected to be fair and reasonable to a property owner. (emphasis in original)
57 That email makes clear that Mr Hunter was aware that the City considered that all materials on the Property which were unrelated to his residential use of the Property should be removed and that he was so aware well in advance of the trial.
58 Secondly, it was apparent to Mr Hunter from the commencement of the trial what the City's case was. The case was very clearly set out in the City's opening submissions during which counsel for the City submitted, amongst other things:53
The test, and I would say the main issue for determination before the court today, is whether a use is - can properly be described as a - as an incidental use … In the current case, the prosecution case is that the quantity of materials being stored at the property and the nature of those materials are such that the extent of the storage could not be described as reasonable.
59 Counsel for the City then referred to the sorts of materials that had been stored at the Property:54
So the prosecution case is that the extent of those materials is such that it couldn't properly be described as being incidental to the single house use. It is, of course - you don't require planning approval to have a house and have a few items at the house or outside the house. That's part of the ordinary residential use. But if the extent of those items goes beyond what could reasonably be expected as ordinary residential use or incidental to that use, then, that will constitute development.
60 Thirdly, the learned Magistrate sought to explain the process of the trial and invited Mr Hunter to ask him if he needed assistance. That is apparent from the transcript where his Honour expressly said to Mr Hunter:55
If you need some assistance during the course of the trial, don't hesitate to ask me. I'm not your lawyer though so I can't, sort of, help you through the trial but I can do my best to, sort of, guide you through it.
61 Mr Hunter did not, at any stage, indicate to the learned Magistrate that he did not understand the charge against him, nor did he seek any assistance to understand the charge.
62 Having regard to these considerations, I am satisfied that Mr Hunter has no reasonable prospect of success in respect of these grounds of appeal, being that he did not understand the charge, or that he was not given particulars of the charge or the evidence until the closing submissions made by the City.
(b) Why leave to appeal on grounds 7 and 8 of the grounds of appeal should be refused
63 These grounds, in essence, contend that the City never made clear to Mr Hunter what it was that he was doing wrong or what materials should be removed from the Property. He also complains that he was not given the opportunity to appeal the City's request that he remove materials from the Property.
64 For the reasons outlined above at [52] - [59], these grounds of appeal have no reasonable prospects of succeeding.
65 I digress to observe that these grounds also do not conform with the requirements of a ground of appeal under s 8 of the CA Act, but I have approached them on the basis that they amount to a contention that Mr Hunter says he did not understand the charge by the time of the trial and that that led to a miscarriage of justice.
66 However, one further observation should be made in respect of these grounds. The underlying premise of these grounds is that the letter of 13 August 2015 from Ms Hoskisson, to which I have already referred above at [55], had some status under the relevant legislation or the Scheme. It does not appear to have had any such status. Rather, it appears that the purpose of that letter, which was confirmed by counsel for the City on the hearing of the appeal, was that it was an attempt by the City to give Mr Hunter the chance to avoid prosecution by removing materials from the Property. No question, therefore, arises in relation to any avenue of appeal from that letter and, in any event, that issue is irrelevant to Mr Hunter's appeal against conviction.
(c) Why leave to appeal in respect of ground 5(b) of the grounds of appeal and ground 3 of the supplementary grounds of appeal should be refused
67 These grounds essentially contend that Mr Hunter was denied a fair trial because documents he was provided with by the City could not be used by him in court and that the learned Magistrate did not permit him to cross-examine his witness (in oral submissions, Mr Hunter clarified that he meant that he was not permitted to re-examine Mr Brouwer)56. Again, having regard to s 8 of the CA Act, I have understood these grounds of appeal as effectively contending that there was a miscarriage of justice because the trial was not fairly conducted.
68 Having carefully considered Mr Hunter's submissions, I am of the view that these grounds of appeal have no reasonable prospect of succeeding.
69 These grounds appear to be based on a misunderstanding of what it was that transpired in the course of the trial.
70 In the course of his cross-examination of Ms Hoskisson, Mr Hunter sought to cross-examine her by reference to a summary of her evidence, which had been provided by the solicitors for the City under cover of the letter of 21 March 2016 (to which I have referred above at [52]). Counsel for the City clarified that that document had not been prepared by Ms Hoskisson herself, but had been prepared by the City.57 At that point, the learned Magistrate told Mr Hunter that he could not cross-examine Ms Hoskisson on that document because it was not her document. However, the learned Magistrate then went on to make clear that:58
You can cross-examine her on her evidence and, if you wish, if there are any inconsistencies in her evidence with a statement that she has made you can cross-examine her about that.
71 In my view, no miscarriage of justice arose from that interchange. Mr Hunter proceeded to ask further questions in cross-examination of Ms Hoskisson and to explore the evidence that she had given in her examination-in-chief as to her observations at the Property and to the City's interaction with Mr Hunter in relation to the storage of materials on the Property.
72 Mr Hunter also contends that he was not permitted to re-examine Mr Brouwer. When regard is had to the transcript of Mr Brouwer's evidence, it discloses that when the cross-examination of Mr Brouwer ended, the learned Magistrate proceeded to thank the witness for his attendance and advise him that he was free to leave the court without inviting Mr Hunter to re-examine the witness.59 Mr Hunter did not, I observe, indicate to the learned Magistrate that he would like to ask the witness further questions by way of re-examination.60
73 Notwithstanding that no opportunity was afforded to Mr Hunter to re-examine Mr Brouwer, I am not satisfied that any miscarriage of justice could be said to have arisen. The reason for that conclusion is that Mr Brouwer's evidence, as I have already indicated above at [36], was to the effect that he had assisted Mr Hunter on two or three occasions to remove materials from the Property during the prosecution period, evidence which was not challenged in his cross-examination. Mr Brouwer had also given evidence in cross-examination to the effect that there was still a substantial amount of materials on the Property, notwithstanding that removal. Although Mr Hunter did not have the opportunity to ask Mr Brouwer further questions about that matter, in view of the totality of the evidence and particularly the photographic evidence, which demonstrates amply the volume of material on the Property as at 9 September 2015, I am unable to envisage how any exploration of that subject by way of re-examination would have called into question the conclusion the learned Magistrate reached.
74 In addition, as I have already noted above at [40], the conclusion reached by the learned Magistrate accepted that materials had been removed from the Property. But, nevertheless, the situation remained that very little had changed within the prosecution period up to 9 September 2015.
75 In the course of his oral submissions on the appeal, Mr Hunter submitted that he wished to re-examine Mr Brouwer to ask him to clarify his evidence that materials could be seen on Mr Hunter's property - whether from Mr Brouwer's side or from the road.61
76 To the extent that Mr Hunter wished to re-examine Mr Brouwer to clarify whether the materials on the Property could be seen from Mr Brouwer's property or from the road, having regard to the evidence given by Mr Brouwer, it was, in my view, clear that his evidence was that the materials on the Property could be seen from Mr Brouwer's property and from the road. In addition, the fact that the materials on the Property could be seen from the road is more than amply demonstrated by the photos which were in evidence. In any event, the question whether the materials could be seen from the road or from Mr Brouwer's property was not to the point, for the purposes of the conviction.
77 Accordingly, these grounds of appeal have no reasonable prospect of succeeding and leave to appeal should be refused.
(d) Why leave to appeal in respect of ground 6 of the grounds of appeal and grounds, 1, 4, 5, 6 and 7 of the supplementary grounds of appeal should be refused
78 These grounds all allege in various ways that the City's officers behaved in an improper way, in that the prosecution was malicious or an abuse of process in some way.
79 Underlying some of these grounds appears to be a contention that it was unreasonable for the City to commence a prosecution against Mr Hunter in circumstances where, in his view, there had been inadequate conferral between him and the City or inadequate explanation by the City's officers about what was expected of him.
80 In addition, in his oral submissions, Mr Hunter was concerned about the period of time that the City had given him to remove the materials and considered that that was an inadequate period of time, having regard to the amount of materials at the Property.62
81 Furthermore, in the course of his oral submissions, Mr Hunter contended that he had been pursued by the City for many years; that '[t]here has been legal matters for years [and that the City] had won some [and he] had won some';63 and that the City was aware that he wanted to use all of the materials stored at the Property for the purposes of a renovation of his home.64 Although at the time of the trial, approval had been refused in relation to his renovation plans, Mr Hunter claimed that, subsequently, the City had granted approval for the renovations in question.65
82 To the extent that these grounds contend that the prosecution commenced against Mr Hunter was a malicious prosecution, an allegation of that kind constitutes an allegation of a tort and does not constitute a ground of appeal under s 8 of the CA Act. Accordingly, leave to appeal in respect of these grounds on that basis should not be granted.
83 To the extent that these grounds allege that the prosecution was an abuse of process, that allegation, in my view, is entirely unsupported by any evidence at the trial and, therefore, has no reasonable prospect of success. Leave to appeal in respect of these grounds on that basis should not be granted.
84 Accordingly, leave to appeal on these grounds should not be granted.
(e) Why leave to appeal in respect of ground 10 of the grounds of appeal should be refused
85 This ground alleges that the City's case was not proved beyond a reasonable doubt. A contention that a charge was not proven beyond reasonable doubt is not a ground of appeal expressly permitted by the CA Act, however, there is authority for the proposition that a ground of appeal which contends that a conviction is 'unreasonable, having regard to the evidence' can be treated as a ground of appeal that contends that the conviction, having regard to the evidence, would constitute a miscarriage of justice.66 I have approached this ground of appeal on that basis and, accordingly, it falls within the grounds of appeal permitted by the CA Act.67
86 At the heart of this ground is Mr Hunter's belief that the storage of the materials at the Property could be said to be ancillary to his use of the land for residential purposes. I am unable to agree that there is any reasonable prospect of success on this ground, having regard to the evidence.
87 Before turning to the evidence, however, it is appropriate to mention some relevant authorities, some of which were mentioned by the learned Magistrate. These authorities have explored what it means when it is said in planning schemes that a use is 'incidental' to another use.
88 In Lizzio v The Council of the Municipality of Ryde,68 the High Court had to consider whether the use of residential land for the sale of flowers was incidental to its use for the purpose of a dwelling house, and so contrary to the provisions of the County of Cumberland Planning Scheme Ordinance.
89 Gibbs CJ observed:69
Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwelling-house.
90 His Honour also referred to remarks made by Glass JA in Foodbarn Pty Ltd v Solicitor-General as follows:70
Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others. …
91 In City of Armadale v Hendry, Hall J had to consider whether land was used for vehicle wrecking without approval, contrary to the relevant planning scheme and to s 218 of the Act, and whether that activity was incidental to the permitted use of the land. His Honour observed:71
Land may be used for more than one purpose. In that case each use must be permitted or approved. However, not all activities on land constitute the use of that land. Some activities may be merely incidental to a permitted use. Whether a use is a distinct and separate use or is merely an incidental part of a permitted use will depend upon the regularity and extent of the activity.
92 Finally, in Clay v The City of Nedlands, Hall J dealt with an appeal from a decision of the State Administrative Tribunal on the question whether the use of a residence as short-term accommodation was incidental to its use as a dwelling. His Honour observed that:72
Whether use of a property constitutes a distinct and separate use is a question of fact and degree.
93 Turning then to the circumstances in the present case, which I have outlined above at [22] - [37], it is apparent that the learned Magistrate had ample evidence before him which proved beyond a reasonable doubt that Mr Hunter's storage of materials at the Property could not be said to be ancillary to its use for residential purposes as a dwelling. That conclusion was amply supported by the evidence given by the witnesses as to what they had seen as to the nature, volume and location of the items in the front and back yards of the Property and by the photos taken by Ms Eliades on both 5 August and 9 September 2015.
94 The nature and the sheer quantity of the materials in question, and the fact that they were located on the Property, at least during the prosecution period, in my view, all supported the conclusion reached by the learned Magistrate that the use of the Property for the storage of those materials was not incidental to its residential use as a dwelling.
95 As the cases to which I have referred above at [88] - [92] demonstrate, each case will turn on its facts and involve questions of fact and degree, but the evidence in this case was compelling to establish that the use of the Property for the storage of materials was a distinct use which was not ancillary to its residential use as a dwelling. Accordingly, I do not see any reasonable prospect of success in the contention that the charge was not proved beyond a reasonable doubt or that there was, therefore, a miscarriage of justice.
(f) Why leave to appeal in respect of ground 1 of the grounds of appeal should be refused
96 This ground of appeal amounts to a contention that the fine and the costs order imposed by the learned Magistrate were manifestly excessive. I will deal with the fine and the costs order separately.
97 An appeal court cannot interfere with the exercise of sentencing discretion simply because the appeal court might have imposed a different sentence if it had sentenced the offender at the initial hearing. Interference will only be justified if the appellate court is satisfied of error.73 An appellant needs to demonstrate that the judge or magistrate erred in exercising that discretion by making an express error, such as a mistake as to the law or the facts, or by making an error that is implied or inferred. In the latter case, the implied error arises from the fact that the end result is so unreasonable or so unjust that the court must conclude that a substantial wrong has occurred.74
98 No express error is alleged by Mr Hunter. The appeal notice simply contends that the fine was manifestly excessive.
99 No particulars were provided as to why the fine imposed was said to be manifestly excessive. This ground of appeal thus failed to comply with r 65(2)(d) of the Criminal Procedure Regulations 2005 (WA), which makes clear that a ground of appeal must not merely allege that a sentence is excessive or inadequate. In this case, however, I am mindful of the fact that Mr Hunter is a self-represented litigant, and it is difficult for litigants without knowledge of the legal requirements to comply with those requirements in some instances. I am also mindful of the fact that the City has had limited involvement in the appeal up to this point, and there has been no prejudice to the City due to the lack of particulars.
The fine
100 Mr Hunter's oral submissions suggested that his complaint is that the fine was too high, apparently having regard to the nature or seriousness of the offence, and to his personal circumstances.75 In so far as the sentence is concerned, in my view, ground 1 has no reasonable prospect of succeeding for the following reasons.
101 In order to assess whether a sentence is manifestly excessive, it is necessary to consider the maximum penalty, any statutory minimum penalty, the standards of sentencing customarily observed in relation to offences of this character, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender. All aggravating and mitigating circumstances must also be taken into account.76
102 The maximum penalty for an offence committed under s 218 of the Act 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 is also able to be imposed.77
103 In the present case, the maximum penalty that could have been imposed on Mr Hunter was a fine of $1,075,000 comprising a fine of $200,000 and the potential for a further fine of $875,000, being a fine of $25,000 for each of the 35 days during which the offence continued after the first day. The fine of $16,000 imposed by the learned Magistrate was thus modest by comparison with the maximum penalty for the offence itself, even if one ignores entirely the potential for a daily penalty, which the learned Magistrate did not impose.
104 The offences that are able to be committed under s 218 of the Act can occur in a huge variety of circumstances. They can be committed by individuals and by corporations. Even where the offences are committed by individuals, there can be a huge range of circumstances in which the offences are committed, and that makes identification of a range of penalties for offences under the Act somewhat difficult.
105 In addition, past cases must be viewed bearing in mind that there has been a change in the maximum penalty in respect of s 218 offences from $50,000 to the $200,000 maximum penalty which presently applies. Doing the best that I can, for individuals who use land in breach of the Act, other than by constructing buildings without approval, fines have ranged from that in the case of Uxcel v City of Bayswater,78 where the offender received a fine of $5,000 for installing a sign without approval (when the maximum was $200,000), where the offending was clearly at the lowest end of the spectrum of seriousness; to Callan v City of Fremantle,79 where first offenders used a shed on their property to store building materials without approval and, on appeal, each received a fine of $4,000 (when the maximum penalty was $50,000); to Teissier v City of Rockingham,80 where the offender (also a first offender) received a fine of $15,000 for causing about 250 truckloads of soil to be delivered to his property without approval (when the maximum fine was $50,000). In cases involving the construction of buildings without approval, or protracted use of land for commercial purposes without approval, much higher fines have been imposed.
106 Having regard to the range of sentences which have been imposed and to the nature of the offending in those cases, in my view, it could not be said that the offending in this case was at the lowest end of the scale of seriousness of offending under s 218 of the Act. The offending conduct in this case went on in excess of a month and was committed in the knowledge of previous warnings from the City over a number of years.
107 In addition, this was a case where specific deterrence was clearly required and, in so far as the learned Magistrate appears to have accepted the City's submission that a fine reflecting the need for general deterrence needed to be imposed,81 I see no error in that approach either. The offending in this case clearly took place notwithstanding prior successful prosecutions of Mr Hunter for not dissimilar conduct, albeit not under the same legislation.
108 In my view, taking all of these factors into account, Mr Hunter has no reasonable prospect of succeeding in establishing that the fine imposed in this case was manifestly excessive in all of the circumstances.
109 One other matter that arose in the course of the appeal hearing was Mr Hunter's contention in his oral submissions that the Magistrate did not take into account what Mr Hunter had said in respect of his personal situation, and, in particular, that he did not take into account his ability to pay a fine or his income in setting the quantum of the fine he imposed.82 Mr Hunter referred to observations made by the learned Magistrate in the course of the submissions that were made by counsel for the City in respect of the sentence. Mr Hunter pointed out that he sought to interject and was told that the Magistrate did not wish to hear from him at that stage.83
110 Notwithstanding that exchange, I am not persuaded that Mr Hunter has any reasonable prospect of succeeding in contending that the learned Magistrate made an express or implied error in setting the quantum of the fine when the evidence is looked at as a whole and taking into account the applicable principles.
111 In imposing a fine, the court must consider the means of the offender and the extent to which the fine will burden the offender.84 However, a court may fine an offender even though it has been unable to find out about matters such as the means of the offender and the extent to which payment of the fine will burden the offender.85
112 In addition, Jenkins J observed in Tey v Plotz [No 2] that:86
[I]t is also a relevant factor to take into account that an offender can apply for time to pay a fine and that their means will be taken into account in determining a time to pay arrangement. Thus, there are no longer the burdens which used to be on an offender as a consequence of having to pay a fine by a particular date and having to spend time in custody in default of payment.
113 In Burns v Urban, Jenkins J observed:87
In imposing a fine the court must consider the means of the offender and the extent to which payment of the fine will burden the offender: Sentencing Act 1995 (WA) s 53(1). I acknowledge that the magistrate did not expressly refer to the appellant's financial position when he imposed the fines. However, the magistrate had only just heard from the appellant in respect to his ability to pay a fine. He had also questioned the appellant only a few moments earlier about the amount of fines which he may have then owed. It is clear to me that the magistrate was well aware of the information that the appellant had just given him about his ability to pay a fine. The fines themselves were very modest, particularly having regard to the maximum penalties …
114 In this case, the learned Magistrate did not expressly mention Mr Hunter's means to pay a fine. As I have observed, he did not give separate reasons for decision in respect of his decision to impose the fine of $16,000.
115 In AB v Lloyd, Jenkins J observed that:88
The failure of a magistrate to mention a matter expressly in his or her reasons for decision does not necessarily give rise to an inference that the matter was not considered. However, reasons for sentence should disclose the essential reasoning by which the sentence was arrived at. In the absence of credible evidence to the contrary, it is to be assumed that a magistrate has complied with the duties imposed by the Sentencing Act and taken relevant matters into account.
116 I digress to note that there is no ground of appeal to the effect that there were inadequate reasons given in respect of sentence, and I have proceeded on that basis.
117 Having regard to the submissions which had been made to the learned Magistrate and his interchange with counsel for the City,89 it is, in my view, apparent that the learned Magistrate had accepted the thrust of the submissions made by counsel for the City which, as I have mentioned above at [43], referred to the need for general deterrence and for specific deterrence in the circumstances where Mr Hunter had previous convictions for not dissimilar conduct.90 In addition, in the course of the submissions made by counsel for the City, submissions had been made as to Mr Hunter's ownership of property, including motor vehicles at the premises,91 and to the fact that Mr Hunter had paid previous fines in full, albeit using arrangements for the payment of the fines over time.92
118 Further, in the course of submissions, Mr Hunter had told the learned Magistrate that he was self-employed and ran a business,93 that he is a sole parent and was not receiving any assistance in raising his children,94 and that he had been hindered by the requirement to pay fines on previous occasions in terms of what he was able to do to get his 'property into gear'.95 The learned Magistrate was told that the fines that Mr Hunter had been previously required to pay were in amounts of $2,000 and $5,000.96
119 In all of the circumstances, it is apparent, in my view, that the learned Magistrate had before him information as to Mr Hunter's personal circumstances and information which suggested that he had some capacity to pay a fine as, indeed, he had in the past, and that he had property which could be brought to bear in acquiring funds to pay a fine if funds were not otherwise immediately available.
120 In all of those circumstances, I am not persuaded that there is any reasonable prospect of succeeding in establishing that the learned Magistrate made either an express or implied error when he imposed a fine of $16,000 in respect of the charge.
The costs order
121 Mr Hunter's contention in respect of the costs order, again, is that the amount imposed by way of a costs order was excessive, having regard to what Mr Hunter contends is the 'usual amounts' awarded under the Official Prosecutions (Accused's Costs) Act 1973 (WA) (the OP Act), which would be 40 to 50 per cent of what might be claimed under the relevant scale.
122 The Criminal Procedure Act 2004 (WA) provides that in prosecutions in courts of summary jurisdiction, subject to certain exceptions, 'a successful party to a prosecution is entitled to that parties' costs',97 and that if a court convicts an accused of a charge, the court may order the accused to pay all or a part of the prosecutor's costs.
123 The quantum of any costs order is determined in accordance with the relevant determination made under s 275 of the Legal Profession Act 2008 (WA) for the purposes of the OP Act. It appears that the relevant determination in respect of the trial in this case was the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2016 (WA) (the 2016 Determination), which came into force on 1 July 2016. There were also some appearances, for which counsel for the City sought costs, which had taken place prior to 1 July 2016, which therefore would have been covered by the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA) (the 2014 Determination).
124 At the conclusion of the trial, counsel for the City sought a costs order against Mr Hunter 'against the scale, which [is] the full amount able to be awarded under the costs scale'.98 Counsel for the City submitted that the costs sought were calculated by reference to the determination in force prior to the 2016 Determination. That is, that the costs he sought were those provided for under the 2014 Determination. That calculation appears to have worked in Mr Hunter's favour, as the amounts allowable under the scale increased in the 2016 Determination in some instances.
125 Counsel for the City submitted that the costs which were sought were those which were available under the scale, and he indicated how that had been calculated by reference to items in the scale for appearances, by reference to the hourly rate, by reference to the amount of time for a half-day of trial including preparation, and a further half-day of trial, and by reference to the applicable court filing fee.99
126 The learned Magistrate's conclusion as to the appropriate quantum of costs involved an exercise of discretion. Again, in reviewing that exercise of discretion, the court needs to bear in mind on an appeal that:100
It is not be enough that the judges composing the appellate court considers that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
127 Mr Hunter has not demonstrated, and I am unable to see any basis for, a contention that the learned Magistrate made some error in the exercise of his discretion. It may well be that it was open to the learned Magistrate to have taken a different view, or that an appellate court might take a different view as to whether the costs which were sought should have been awarded in their entirety. However, it is apparent that the learned Magistrate concluded that the costs claimed should be awarded to the City. No error has been shown in that decision. In those circumstances, I do not consider that Mr Hunter has a reasonable prospect of succeeding in respect of this ground.
128 In all of those circumstances, leave to appeal having been refused in respect of each of the grounds of appeal, the appeal will be taken to have been dismissed.101
1Criminal Appeals Act 2004 (WA) s 9(1).
2Criminal Appeals Act 2004 (WA) s 9(2).
3Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
4Criminal Appeals Act 2004 (WA) s 9(3).
5Planning and Development Act 2005 (WA) s 4(1).
6Macquarie Online Dictionary.
7 See The University of Western Australia v City of Subiaco (1980) 52 LGRA 360, 363 - 364 (Burt CJ); see also Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [36] (Sleight C).
8 ts 6.
9 ts 6 - 7.
10 ts 34.
11 ts 14, 36.
12 ts 61.
13 ts 64.
14 ts 31.
15 ts 19.
16 ts 20.
17 Exhibit 11.
18 ts 40.
19 ts 69.
20 ts 71.
21 ts 84.
22 ts 87.
23 Exhibit 9.
24 ts 52.
25 ts 30.
26 ts 30 - 31.
27 ts 31.
28 Exhibit 11.
29 ts 44, 65.
30 ts 90.
31 ts 92
32 ts 93.
33 ts 97.
34 ts 98.
35 ts 100.
36 ts 100.
37 ts 100.
38 ts 94 - 105.
39 ts 96.
40 ts 103.
41 ts 103.
42 ts 104.
43 ts 104.
44 ts 105.
45 ts 105 - 111.
46 ts 111 - 115.
47Criminal Appeals Act 2004 (WA) s 8(1).
48R v Brown (Winston) (1994) 1 WLR 1599, 1606 (Steyn LJ, Owen & Kennedy JJ agreeing). See also The State of Western Australia v Christie [2005] WASC 214 [9] (McKechnie J).
49Johnson v Miller(1937) 59 CLR 467, 489 (Dixon J); see also s 131(3) of the Criminal Procedure Act 2004 (WA) which permits a court to order that a prosecutor give further particulars of a charge to an accused.
50Scolaro v Shephard [No 2] [2010] WASC 271 [64] (Martin CJ).
51 Exhibit 9.
52 Exhibit 11.
53 ts 7.
54 ts 7.
55 ts 11.
56 Appeal ts 29.
57 ts 54.
58 ts 56.
59 ts 100.
60 ts 100; Appeal ts 30.
61 Appeal ts 30 - 31.
62 Appeal ts 22.
63 Appeal ts 23.
64 Appeal ts 16.
65 Appeal ts 33.
66 See Stephenson v Treser [2014] WASC 181 [28] - [31] (Le Miere J); Thakrar v Hull[2013] WASC 447 [19] - [22] (Corboy J); Murphy v Spencer [2013] WASC 256 [62] - [68] (Corboy J); Hunt v Callaghan[2011] WASC 10 [150] - [152] (Jenkins J).
67Criminal Appeals Act 2004 (WA) s 8(1)(b).
68Lizzio v The Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211.
69Lizzio v The Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211, 216 - 217.
70Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, 161.
71City of Armadale v Hendry [2013] WASC 422; (2013) 198 LGERA 173 [37].
72Clay v The City of Nedlands [2012] WASC 402 [34].
73Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 - 672 [15] (the Court).
74House v The Queen [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ); Wilson v The State of Western Australia [2010] WASCA 82 [2] (McLure P & Owen JA).
75 Appeal ts 36.
76Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Mack v The State of Western Australia [2014] WASCA 207 [193] - [194] (Buss JA, Martin CJ & Mazza JA agreeing).
77Planning and Development Act 2005 (WA) s 223.
78Uxcel v City of Bayswater [2013] WASC 5.
79Callan v City of Fremantle [2008] WASC 197.
80Teissier v City of Rockingham [2014] WASC 158.
81 ts 106.
82 Appeal ts 39 - 43.
83 Appeal ts 40 - 41.
84Sentencing Act 1995 (WA) s 53.
85Sentencing Act 1995 (WA) s 53(2).
86Tey v Plotz [No 2] [2011] WASC 34 [75].
87Burns v Urban [2010] WASC 289 [36] (citation omitted).
88AB v Lloyd [2011] WASC 97 [30] (citation omitted).
89 ts 105 - 111.
90 ts 105 - 106.
91 ts 108.
92 ts 105 - 106.
93 ts 93.
94 ts 110.
95 ts 113.
96 ts 105.
97Criminal Procedure Act 2004 (WA) s 67(1).
98 ts 111 - 112.
99 ts 112.
100House v The King (1936) 55 CLR 505, 504 - 505 (Dixon, Evatt & McTiernan JJ).
101Criminal Appeals Act 2004 (WA) s 9(3).
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25
9