JAG Demolition Pty Ltd v Partridge

[2002] WASCA 272

JAG DEMOLITION PTY LTD -v- PARTRIDGE [2002] WASCA 272

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 272
Case No:	SJA:1060/2002	Heard:	12 SEPTEMBER 2002
Coram:	BARKER J	Delivered:	3/10/02
No of pages:	25	Judgment Part:	1 of 1
Result:	Appeal allowed Fine reduced
Category:	B
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Parties:	JAG DEMOLITION PTY LTD GRAHAM DAVID PARTRIDGE
Catchwords:	Criminal law Appeal against sentence Conviction and fine in absence of appellant Whether fine "excessive" Principles applicable to fine Relevance of alleged prior conduct not the subject of prior conviction
Legislation:	Justices Act 1902, s 184, s 196(1)(b), s 199(1)
Case References:	Anderson v The Queen (1993) 67 ALJR 911 Canale v Bayens [2001] WASCA 383 CDJ v VAJ (1998) 197 CLR 172 Dinsdale v The Queen (2000) 202 CLR 321 Gavin v The Queen (1991) 6 WAR 195 Harvey v Robertson [1999] WASCA 120 House v The King (1936) 55 CLR 499 Langridge v The Queen (1996) 17 WAR 346 Nisbet v Fullarton, unreported; SCt of WA (Scott J); Library No 930265; 4 May 1993 R v Olbrich (1999) 199 CLR 270 Rowlands v Caporn [2001] WASCA 66 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : JAG DEMOLITION PTY LTD -v- PARTRIDGE [2002] WASCA 272 CORAM : BARKER J HEARD : 12 SEPTEMBER 2002 DELIVERED : 3 OCTOBER 2002 FILE NO/S : SJA 1060 of 2002 BETWEEN : JAG DEMOLITION PTY LTD

Appellant

AND

GRAHAM DAVID PARTRIDGE
Respondent

Catchwords:

Criminal law - Appeal against sentence - Conviction and fine in absence of appellant - Whether fine "excessive" - Principles applicable to fine - Relevance of alleged prior conduct not the subject of prior conviction

Legislation:

Justices Act 1902, s 184, s 196(1)(b), s 199(1)

Result:

Appeal allowed

Fine reduced

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr B S Hanbury
Respondent : Mr J C W Skinner

Solicitors:

Appellant : Beau Hanbury
Respondent : McLeods

Case(s) referred to in judgment(s):

Anderson v The Queen (1993) 67 ALJR 911
Canale v Bayens [2001] WASCA 383
CDJ v VAJ (1998) 197 CLR 172
Dinsdale v The Queen (2000) 202 CLR 321
Gavin v The Queen (1991) 6 WAR 195
Harvey v Robertson [1999] WASCA 120
House v The King (1936) 55 CLR 499
Langridge v The Queen (1996) 17 WAR 346
Nisbet v Fullarton, unreported; SCt of WA (Scott J); Library No 930265; 4 May 1993
R v Olbrich (1999) 199 CLR 270
Rowlands v Caporn [2001] WASCA 66

Case(s) also cited:

Nil

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1 BARKER J: This is an appeal against sentence pursuant to s 184 of the Justices Act 1902, leave to appeal having been granted on the ground that the sentence was excessive.

2 On the complaint of Graham David Partridge, chief executive officer and public officer of the Town of Cambridge, made 22 October 2001, JAG Demolition Pty Ltd was charged with the following offence:

"That on or about 28 June 2001 at Lot 1896 (No 73) Simper Street Wembley … commenced to take down a building on the Land without the Town of Cambridge (being the local government in whose district the Land is situated) having approved an application and issued a licence for such work, in contravention of s 374A(1) of the Local Government (Miscellaneous Provisions) Act 1960, and thereby committed an offence pursuant to s 670 of the said Act."

3 The complaint came on for hearing before Mr Roberts SM in the Court of Petty Sessions of Western Australia at Perth on 20 November 2001. The defendant was called by the bench clerk, but there was no appearance. Counsel for the complainant then provided to the learned Magistrate what was then described as a "letter which indicates an endorsed plea", namely, that the defendant pleaded guilty to the offence as charged. The learned Magistrate proceeded to record a conviction and sentenced the appellant in the absence of the appellant, as he was entitled to do pursuant to s 136AA of the Justices Act.

4 It was common cause in this appeal that the appellant did plead guilty to the offence as summonsed by endorsing such a plea on the letter, chose not to appear at the hearing of the complaint and was not represented at such hearing and did not provide any material or make any plea to the Court in mitigation of the offence.

5 On the hearing of this appeal, counsel for the respondent took objection to the appellant relying on parts of the affidavits of Mr Andrew Gitsham and Mr Beau Hanbury (solicitor and counsel for the appellant) that were included in the appeal book and filed in support of the earlier applications for leave to appeal and for an extension of time in which to make the application for leave to appeal. In an objection foreshadowed by letter, a copy of which was provided to the Court, counsel for the respondent submitted that, insofar as those affidavits dealt with matters relating to the application for an extension of time, they were not relevant on the appeal. It was contended that, insofar as they

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purported to contain evidence that was not before the learned Magistrate, no order allowing such further evidence to be used in the appeal had been made pursuant to s 196(1)(b) of the Justices Act and O 65A r 3 of the Rules of the Supreme Court.

6 At the outset of the appeal, counsel for the appellant adverted to the foreshadowed objection and indicated that the appellant would proceed on the basis that the only material or evidence relied upon was that placed before the learned Magistrate when he made the decision appealed from. The Court indicated that the power of the Court under s 196(1)(b) of the Justices Act to receive further evidence, either oral or by affidavit, on the determination of an appeal appeared to be broad and that it did not appear necessary for an appellant to establish "exceptional circumstances", as counsel for the respondent had suggested, before the power to receive further evidence could be exercised. In that respect, the decision of the Full Court of this Court in Gavin v The Queen (1991) 6 WAR 195, referred to by the respondent, primarily dealt with the question whether exceptional circumstances had been shown in order to permit an extension of time to appeal. The power of the Court under s 196(1)(b) to receive further evidence is not limited or qualified by any express "exceptional circumstances" requirement. It is not unlike s 93A(2) of the Family Law Act1975 (Cth) considered by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172, which was held to be a statutory power not governed by the common law rules governing the admission of fresh evidence but one created "to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures": per McHugh, Gummow and Callinan JJ, 197 CLR at 201 par [109]. It is a power which creates a discretion which "must be exercised judicially": per McHugh, Gummow and Callinan JJ at 203 par [115]. See generally the joint judgment of McHugh, Gummow and Callinan JJ 197 CLR at 200 - 203, pars [107] - [115]. Similar views have been expressed in single Judge appeals in this Court: see Canale v Bayens [2001] WASCA 383 per Pullin J; Rowlands v Caporn [2001] WASCA 66 per Roberts-Smith J; and Nisbet v Fullarton, unreported; SCt of WA (Scott J); Library No 930265; 4 May 1993.

7 Notwithstanding this indication, counsel for the appellant was adamant that the appellant would rely only on the transcript of proceedings before the learned Magistrate in the court below and would not rely on any facts or materials contained in the affidavits of Mr Gitsham and Mr Hanbury contained in the appeal book.

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8 The transcript of the proceedings before the learned Magistrate shows that, having heard submissions from counsel for the complainant concerning sentence, the learned Magistrate considered the "appropriate penalty" in relation to the matter to be a fine of $9000 (with costs of $572.70). The Magistrate was aware, as is the case, that the maximum penalty for an offence of this type by a corporate defendant is a fine of $25,000.

9 Section 186 of the Justices Act provides that an application for leave to appeal may only be made on the ground or grounds coming within the following:

"(a) that the justices —

(i) made an error of law or fact, or of both law and fact;

(ii) acted without or in excess of jurisdiction;

(iii) imposed a sentence that was inadequate or excessive;


(b) that there is some other reason that is sufficient to justify a review of the decision."

10 In Dinsdale v The Queen (2000) 202 CLR 321, the High Court of Australia made it plain in relation to the sentencing power created by s 656 of the Criminal Code that the power so exercised by a trial Judge is conditioned by the principles set out in s 6 of the Sentencing Act1995 (WA) and by consideration of the sentencing options spelled out in Pt 5 (especially s 39) and, where relevant, the provisions for suspended imprisonment in Pt 11 (especially ss 76 and 77).

11 Dinsdale involved an appeal by the prosecution against the adequacy of a sentence imposed by the trial Judge. Such an appeal is made pursuant to s 688(2) of the Criminal Code (WA). The powers of the Court of Criminal Appeal on such an appeal are prescribed by s 689(3) in the following terms:

"On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an

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accused person stands convicted (whether more or less severe) in substitution therefor as they think ought to have been passed and in any other case shall dismiss the appeal."

12 In relation to such a power, Gleeson CJ and Hayne J stated, at 324 par [3] that the task of the Court of Criminal Appeal is to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v The King (1936) 55 CLR 499 at 505:

"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. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of a discretion is reviewed on the ground that a substantial wrong has in fact occurred."

13 Their Honours then characterised four grounds set out in the prosecution's notice of appeal to the Court of Criminal Appeal as amounting to one essential ground, namely, that the sentence imposed by the trial Judge was manifestly inadequate, rather than the subject of specific error.

14 As to what "manifest inadequacy" of sentence comprises, Gleeson CJ and Hayne J at 325 par [6] observed as follows:

"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified of specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the

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wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case."

15 Similarly, in Dinsdale Kirby J, having noted at 339 par [58] the discretionary nature of the sentencing decision and the nature of appellate review of a discretionary decision by reference to the factors mentioned in House v The King, then observed at 340 par [59] as follows:

"As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly [there then appears a footnote reference to House v The King at CLR 505]. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to have formed the foundation for conclusion that, in some way, the exercise of the powers of the primary judge has miscarried [footnote omitted].

The existence of this residual basis for appellate intervention is well established. In fact, it is inherent in the provision by statute of a facility to appeal against sentence to a Court of Criminal Appeal. It enables such a court to correct 'idiosyncratic views' [footnote omitted] of individual judges about punishment for particular crimes or types of crime and to replace a sentence that is manifestly disproportionate to the circumstances. Such disproportion can arise where the punishment imposed is considered to be plainly excessive. But it can also arise where such punishment is judged to be manifestly inadequate."

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16 In this appeal, the power of the Court, in effect, to reconsider the sentencing decision of the learned Magistrate arises pursuant to the terms of the Justices Act 1902. Unlike in Dinsdale, the power of the Court is not to be found in a statutory provision as general as that to be found in s 689(3) of the Criminal Code. First, an appeal in a case such as the present can only be maintained if this Court has granted leave to appeal: Justices Act 1902 s 184. Further, an application for leave to appeal may only be made on a specified ground or grounds contained in s 186(1) of the Justices Act. Nonetheless, it may be observed that, generally speaking, the grounds spelled out in s 186(1)(a) reflect the same matters or factors identified in Dinsdale by reference to House v The King. Section 186(1)(b) may well permit other, additional factors to ground the application and grant of leave to appeal.

17 There is no provision in the Justices Act similar to s 689(3) of the Criminal Code considered in Dinsdale expressly enumerating the power of this Court upon hearing the appeal in respect of which leave has been granted. Section 199, however, expressly states the things the Court may do having heard the appeal. For example, the Court may dismiss the appeal; set aside, quash or vary the decision of the justices and any order made or thing done as a result of the decision; substitute a decision that ought to have been made by the justices; or remit the case for rehearing by justices or specified justices or a Magistrate or a specified Magistrate, with or without any direction to him or them.

18 On their proper construction, these provisions of the Justices Act indicate that the powers of the Court referred to in s 199(1) will not be exercised by this Court unless one or other of the grounds specified in s 186(1), has been made out.

19 Section 199(3) of the Justices Act further provides that the Court is not required to set aside, quash or vary a decision of any justices because the justices omitted to make any necessary finding if the facts or evidence -

"(a) in substance support the decision; or

(b) justify the finding,

and the Court may instead under subs (1) either vary the decision or substitute another decision for it."

20 By s 199(4) of the Justices Act, the Court is also empowered to vary the decision of justices or substitute another decision for it where, in a

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conviction, there is some excess which may, consistently with the merits of the case, be corrected.

21 As noted, in this appeal, the appellant relied on the ground that the fine of $9000 imposed on the appellant was "excessive". Counsel for the appellant made it clear that the appellant did not contend that the learned Magistrate made any error of law or fact, or both law and fact, or otherwise acted without or in excess of jurisdiction. In any event, it may well be found that a sentence is "excessive" because, for example, a Magistrate took into account extraneous matters and thereby committed an error of law.

22 The appellant advanced four particular reasons why the fine of $9000 imposed on it should be considered excessive. As set out in the order granting leave to appeal, the four particulars are as follows:

"(1) The circumstances of the appellant's conduct complained of was 'at the lower end of the scale of such actions';

(2) submissions may have been made to the learned Magistrate at the time of the sentencing that the appellant had been 'repeatedly warned' whereas the appellant was not repeatedly warned or at all;

(3) the appellant did not have a previous record such that a fine of the magnitude imposed was appropriate;

(4) the Town of Cambridge, the respondent's employer, delayed the approval of the licence sought on the grounds that the application was not in the prescribed form, but otherwise the application for licence was correct."

23 Having regard to the basis upon which the appeal proceeded, namely, that it was only the material evidence before the learned Magistrate at the time the fine was imposed that should be considered on the appeal, there is no evidence or other material to support the contention that the fine was excessive by reason of the matters set out in particular (4).

24 The issue on the appeal, therefore, is whether alone or in combination the matters in particulars (1), (2) or (3) are made out. To some extent, they overlap each with the other or raise the same issue in different guises. Despite the appellant's attempt to particularise the ground of appeal in these discrete ways, the single issue in this appeal remained whether the sentence imposed was "excessive".

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25 The "facts" relating to the offence were summarily stated by counsel for the complainant when called upon by the learned Magistrate to do so. First, counsel stated what had occurred prior to 28 June 2001 that was considered relevant by counsel and the complainant to the matter of penalty. The learned Magistrate was advised that, on 13 June 2001, the appellant lodged with the Town of Cambridge an application (by inference, pursuant to the relevant provisions of the Local Government Act) for a demolition licence to demolish a dwelling at 73 Simper Street in Wembley, but that the application was not processed by the Town because it was not endorsed, as it should have been, with the signature of the owner of the land indicating consent to the demolition. The company was apparently advised accordingly. On 21 June 2001, a properly completed application was lodged with the Town.

26 The learned Magistrate was advised that, in view of the need to eliminate rats from buildings prior to demolition, the Town, as is the case with most local governments in Western Australia, require buildings to be baited 14 days prior to demolition to eliminate rodents prior to commencement of demolition. The purpose of the baiting, counsel advised, is to prevent the migration of rodents into surrounding properties during demolition works.

27 Counsel advised the learned Magistrate that ordinarily demolition contractors, such as the appellant, contact the relevant local government to advise the environmental health officer when baiting has taken place so that the officer can inspect the baits to ensure they have been laid and laid correctly. In the present case, counsel informed the learned Magistrate, the appellant did not contact the Town -

" and in view of previous problems with this particular contractor, an environmental health officer contacted Mr Gitsham, who's the defendant company's director, on 28 June, to inquire whether the house was open so he could inspect for rat baits."

28 The learned Magistrate was then advised that, during this conversation, Mr Gitsham advised that the demolition works had already begun. He was immediately told by the environmental health officer that a demolition licence had not issued.

29 On the same day, officers of the Town inspected the property. Demolition was found to be well-advanced. Timber flooring, roof tiles and roof framing had been removed from the building. It was evident (by

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inference, to the officers) that there had been rat activity within the dwelling. It appears that, at the time of that inspection by the officers, no contractor or representative of the contractor was on site, but later that day Mr Gitsham was met onsite by the officers. Mr Gitsham was advised by an officer or officers that the company was carrying out the demolition works without a demolition licence and that he was required to stop work. Counsel advised the learned Magistrate that Mr Gitsham "stated that he wouldn't stop demolition works and that the Town could prosecute him".

30 Counsel also advised the learned Magistrate that at the site meeting Mr Gitsham indicated to the officers that the premises had been baited. He was asked to point out the areas where baiting had taken place. Counsel advised the learned Magistrate that:

"He pointed to several areas; there was no evidence of baits having been laid. At the conclusion of his conversation with officers of the Town that day, he gave no instructions to his employees on site; they continued demolition and he left the property, and the demolition was thereafter concluded without a licence having issued."

31 Counsel having so advised the learned Magistrate of what counsel considered to be the material facts relating to the offence, counsel proceeded to advise the Magistrate about certain matters, to which particular objection is taken by the appellant in this appeal, to this effect:

"This particular company has caused some considerable number of problems for the Town in past demolition matters. Following warnings, the company was prosecuted in this court on the 14th of July 1998. On that day, Mr Gitsham advised the court, on behalf of the company, that in his opinion he'd simply jumped the gun with the demolition, as he'd applied for a demolition licence which would have been issued in the future, but hadn't been issued by the time the demolition was carried out. And he stated it was the Town's fault for delaying the issue of the demolition licence. Court told him on that occasion that he'd be [sic] treated leniently, but that he should ensure that demolition licences had actually issued in the future, before commencing works.

Following that conviction, the Town had two more instances of the company demolishing houses prior to licences issuing. On that occasion, Mr Gitsham applied to the council to have no

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action taken by way of prosecution, in view of the fact he'd lodged applications and had been advised the licence was actually ready for collection. He hadn't picked it up. Council elected to take no action on those occasions but wrote to the company on the 28th of May of this year, which is just before this next offence, advising of the need to collect licences and pay fees prior to commencing demolition works. I might hand up a copy of that letter to your Worship. Sir, he got the sort of double warning then, about the two that they weren't taking action on, with the need to do things properly."

32 The letter of 28 May 2001 did not form part of the appeal book the subject of this appeal. Counsel for the appellant was not prepared to admit the letter, a copy of which counsel for the respondent advised the Court he had in his possession and could provide to the Court, on the basis that one could not be certain that the particular copy letter which counsel for the respondent might produce was, in fact, a copy of the letter handed to the Magistrate and also because there could be no certainty that the copy of the letter that counsel proposed to produce was actually handed to the learned Magistrate at the material time. As to the latter proposition, the closing sentencing remarks of the learned Magistrate refer expressly to the contents of the letter of 28 June 2001. On their own, these remarks do not establish that the Magistrate actually received the letter from counsel for the complainant, although in all probability he did. In the event, given the objections of counsel for the appellant, I determined not to receive the copy letter that counsel for the respondent offered to produce. The terms of the letter appear sufficiently in the passage I have just cited. Plainly, they were taken into account by the learned Magistrate when he imposed the fine, a matter to which I will return later in these reasons.

33 Following reference to the terms of the letter of 28 May, counsel for the complainant then advised the learned Magistrate that demolition of buildings within local government districts prior to demolition licences issuing "is - or has been for some time - a major concern for local authorities". Counsel explained to the learned Magistrate that there was a problem with the payment of moneys for such things as work bonds to cover damage that might be occasioned to footpaths or crossovers. He also emphasised that there were questions of public health relating to elimination of rats, or rodents, from buildings prior to demolition. He also explained that demolition licences commonly contain conditions designed to preserve amenity of areas in which demolition is proposed to occur, as well as dealing with the safety of people in such properties. Counsel emphasised that, without a licence and statements of the appropriate

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conditions, a contractor simply does not know what conditions would be imposed.

34 Counsel for the complainant then submitted to the learned Magistrate that:

"This company seems to treat the possibility of prosecution as a bit of an operational expense. There's been a prior conviction, prior warning by a magistrate, as well as those warnings from the Town on the 28th of May, and then in June he's doing the same thing again. I'd submit that a deterrent penalty's needed in this case. It is a second offence; apart from the other warnings, the one prior was in 98. Maximum penalty for the offence for a corporate defendant is a fine of $25,000 and I'd seek costs of $572.70, which includes disbursements."

35 The learned Magistrate then proceeded to impose a sentence. Before doing so, he made the following pre-sentence remarks:

"Well, in relation - - the matter in relation to penalty is obvious that the company has taken down the building and, without obtaining a licence for the work and of course by doing that, has circumvented the health requirements of the shire in relation to the elimination of rodents. Apparently when officials from the Town of Cambridge visited the site, there was no evidence of any rat baits and indeed the director of the company, Mr Gitsham, advised the officers that the demolition of the property would - - or the house on the property, would continue unabated.

The defendant has been prosecuted before for a similar offence. In 98 it was dealt with by a magistrate on that day - - or by the court on that day, and on the 28th of May, about a month before this matter commenced, he was advised that he had to comply with the obligations to obtain a demolition licence and of course, it's obvious licences contain conditions to - - not only health matters but also construction matters such as roads and footpaths."

36 The Magistrate then sentenced the appellant as follows:

"In my view, the appropriate penalty in relation to this matter would be a fine of $9000 with costs of $572.70."

(Page 14)

The learned Magistrate then imposed such penalty and costs.

37 The first contention particularised in par (1) of the ground of appeal is that the sentence is "excessive" in that the circumstances of the appellant's conduct complained of "was at the lower end of the scale of such actions". It may be observed in passing that the learned Magistrate did not make any express assessment as to where on any relevant "scale" the conduct complained of fitted. He did not use expressions such as the "higher end" or the "lower end" or any other place along a hypothetical "scale" when he imposed the sentence. Indeed, there was no evidence concerning a "tariff" penalty for such an offence; that is to say, what such an offence commonly is considered to be "worth".

38 As noted later in these reasons, the Sentencing Act1995 militates against the use of a "tariff" approach in any event. Rather, it requires a consideration of the circumstances of each case. The learned Magistrate did not, in any express way, seek to assess at which end of a supposed scale the offence registered. Rather, he took into account the matters referred to above, including the nature of the offence, the fact that there was no licence issued, the fact that the appellant proceeded with the demolition notwithstanding that it knew it had no licence, the fact that this was a second offence following a previous one in 1998, as well as the "fact" that the offence occurred following advice that a licence was required for such demolition works, which advice had been communicated in a letter from the Town of Cambridge as recently as 28 May 2001 - one calendar month prior to the commission of the offence.

39 As a result, I am not satisfied that the contention particularised in par (1) of the ground of appeal, is made out.

40 The second contention particularised in par (2) of the ground of appeal is that the submissions made by counsel for the complainant to the learned Magistrate at the time of sentencing to the effect that the appellant had been "repeatedly warned" were not accurate. In his written and oral submissions, counsel developed a second strand to this contention to the effect that a number of the prosecution submissions were either not appropriate or not justified. It was submitted that the appellant had not been "repeatedly" warned or, indeed, warned at all. Counsel for the appellant maintained the appellant's position that it was not clear that the letter of 28 May 2001 had been provided to the learned Magistrate. In my opinion, it matters not whether that letter was physically handed by counsel for the complainant to the learned Magistrate in the course of hearing because the substance of the letter and its terms were plainly

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communicated to the Magistrate. As noted above, I consider that in all probability the letter was handed to the learned Magistrate. Whether or not one wishes to characterise the terms of the letter of 28 May 2001 as a "warning" is not to the point. The appellant was put on notice that there was a need to collect licences and pay fees "prior to commencing demolition works".

41 In support of this second contention, counsel for the appellant took particular exception to what he considered to be inappropriate licence taken by counsel for the complainant in expressing personal statements of opinion or conjecture in the course of making submissions concerning sentence on matters either not relevant to the exercise of the sentencing discretion or requiring proof beyond mere assertion. In this regard, counsel fixed upon the statement by counsel for the complainant that "This particular company has caused some considerable number of problems for the Town in past demolition matters" and the sentence that follows that statement commences with the words "Following warnings … ", as well as similar references or allusions to non-conforming prior conduct in relation to the demolition licensing system on the part of the appellant.

42 While counsel criticised such submissions concerning sentence made by counsel for the complainant, counsel declined to make any submission that the Magistrate, in receiving such submissions, committed any error of law or any error of fact. No doubt, there can be circumstances in the sentencing process when matters of fact relied upon in submissions made on behalf of the prosecutor need formally to be proved. Here counsel for the appellant suggested that alleged non-conforming prior conduct should simply not have been raised. He also suggested that the prior offence in 1998 should have been strictly proved and that counsel for the complainant should have desisted from stating what the Magistrate had apparently said when sentencing on that prior occasion.

43 In ordinary circumstances, where a defendant or an accused is present or represented in court during the sentencing process, any facts or matters that are disputed can immediately be identified and, if necessary, a fact-finding exercise can be conducted by the Court. As their Honours Gleeson CJ, Gaudron, Hayne and Callinan JJ noted in their joint judgment in R v Olbrich (1999) 199 CLR 270 at 274 par [1]:

"The process by which a court arrives at the sentence to be imposed on an offender has just as much significance for the offender as the process by which guilt or innocence is

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determined. Unless the legislature has limited the sentencing discretion, a judge passing sentence on an offender must decide not only what type of penalty will be exacted but also how large that penalty should be. Those decisions will be very much affected by the factual basis from which the judge proceeds. In particular, the judge's conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important."

44 In the joint judgment at 197 CLR 280 par [24], their Honours addressed the question of onus and standard of proof in sentencing, in the following terms:

"Courts of Criminal Appeal in Australia have considered the subject of fact finding for sentencing many times in the last 30 years (footnotes omitted). Not all of the questions that have been examined in those decisions must be considered now. For present purposes, it is enough to say that we reject the contention that a judge who is not satisfied on some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt."

45 In a dissenting judgment, although not necessarily so in relation to these questions of principle, Kirby J in R v Olbrich at 290 - 291 par[52] noted as follows:

"In Australia, upon a plea of guilty, a degree of informality has ordinarily marked sentencing procedures (footnote omitted). Usually an agreed statement of facts, sometimes negotiated between the accused and the prosecution, will be placed before the sentencing judge. Sometimes an amount of material, representing the prosecution brief (or parts of it) will be given to the judge, together with victim impact statement (footnote omitted) and other documentary material which may not conform to the ordinary rules of evidence. However, sentencing proceedings remain part of the criminal trial. They do not cease to be so upon the conviction of the accused, either following a jury's verdict or a plea of guilty (footnote omitted). In the event that asserted facts are disputed, those facts must be proved or disregarded. It is the duty of the judge to ensure (if there be any doubt) that the accused is aware of all of the material provided

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to the court upon which the judge will rely in determining the sentence (footnote omitted). Where a fact in that material is contested, it may not be acted upon for sentencing purposes unless it is established. The proof of such a fact must occur in the context of the proceeding concerned, namely, an uncompleted criminal trial. It is fundamental that in any such proceeding, without clear statutory authority, the accused person cannot be obliged to prove a fact. The criminal process does not cease to be accusatorial after the conviction is recorded and during the proceedings relevant to the determination of the sentence."

46 One of the authorities referred to in the joint judgment as having examined the question of onus and standard of proof in sentencing, and not disapproved in the joint judgment, was that of Langridge v The Queen (1996) 17 WAR 346, a decision of a five-member Full Court of this Court. Following a detailed review of the authorities, Kennedy J (with whom Wallwork J agreed) concluded that the general rule should be that it is for the Crown to prove beyond reasonable doubt the facts going to sentence and which, if found, would be likely to result in a more severe sentence than would otherwise be the case. Justices Walsh and Owen (with whom Wallwork J also agreed), at 370, by reference to a decision of the High Court in Anderson v The Queen (1993) 67 ALJR 911, came to a similar position. Murray J came to a different conclusion on the question of standard of proof, preferring the civil standard.

47 Aside from this question as to whether the criminal or civil onus applied in relation to all aspects of the fact-finding exercise, the principles or conclusions set out in the judgment of Murray J in Langridge at 397 otherwise are pertinent and appear generally to be accepted. Whilst not all directly applicable to the proceedings before the learned Magistrate in this case, the following principles stated by Murray J provide some general guidance in a case such as the present:

"1. The standard of proof to be applied to establish facts essential to a finding of guilt of a criminal offence and therefore to the exposure of the defendant to punishment by the State is, subject to statutory exceptions, proof beyond reasonable doubt.

2. That principle will apply under the Criminal Code to pleaded circumstances of aggravation, the purpose of which, whether as elements of the offence charged or not,

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is to expose the defendant to liability to punishment different in kind or of a different severity than would otherwise be available to the sentencing court.

3. For sentencing purposes after trial the Judge is bound to accept the facts so established, but otherwise the Judge may form his or her own view of the facts relevant to the imposition of sentence, provided they are not inconsistent with the verdict of the jury.

4. The sentencing Judge is also bound to accept those facts which are necessary ingredients of an offence, including any pleaded circumstance of aggravation, established by the admission of the accused person inherent in a plea of guilty.

5. Other matters of fact may, having regard to the terms of the Criminal Code, ss 617A and 656, as well as other statutory provisions dealing with the receipt of information for sentencing purposes, be established informally without regard for the rules of evidence, by statements from the bar table and in the form of reports, other documentary material and other recorded information, placed before the court and accepted by it.

6. Where a dispute arises as to the existence of a fact, whether of an aggravating or mitigating kind, sought to be established in that informal way, it will be necessary, if the fact is thought to be sufficiently relevant for sentencing purposes, that the issue be tried and evidence adduced in the ordinary way, although that trial will take place in the more relaxed environment so far as the application of the strict rules of evidence is concerned, which is authorised by the Code s 656.

7. The onus of proving any disputed fact of that character rests upon the party, whether that be the Crown or the prisoner, who seeks to rely upon it for sentencing purposes."

48 In R v Olbrich, at CLR 281 par [25], in the joint judgment their Honours noted:

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"Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof (footnote omitted). References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and defender in sentencing proceedings; there is no such joinder at issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly it will be for the offender who seeks to bring a matter to the attention of the Judge to do so and, again, if necessary, call evidence about it. (We say 'if necessary' because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)"

49 In R v Olbrich, the majority found that, in the proceedings before the primary Judge, the prosecution did not submit that the sentence to be imposed on the respondent (a 58-year-old first offender who pleaded guilty to importing more than 1.1 kilograms of heroin) should be increased beyond what otherwise would be called for by the facts because the appellation "principal" could be attached to him. Rather, the respondent submitted that the sentence otherwise to be imposed on him should be mitigated because he was "a courier". The majority thus held that the respondent bore the burden of proving this fact, of which the primary Judge was not persuaded.

50 Applying so many of these principles as are relevant in the present appeal, the first thing to be noted is that the circumstances in which the sentencing process was conducted by the learned Magistrate was unusual in the sense that the appellant (defendant) chose not to appear or be represented at the sentencing hearing and contented itself in submitting a guilty plea, thereby letting justice take its own course. In such circumstances, there is no person present in the court, unless one includes the complainant or its representative and the learned Magistrate, to act as a contradictor of any facts or materials asserted by or on behalf of the complainant in the course of making submissions concerning sentence. Nonetheless, the usual principles laid out above are capable of application. It cannot be the case that, in such circumstances, the prosecution labours under a more burdensome set of principles. It is open to the Court, if not satisfied about any particular assertion put to it on behalf of the complainant in the course of sentencing submissions, to

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require proof to a standard that satisfies the Court. It remains necessary, of course, for the Magistrate to take into consideration only those factors relevant to the sentencing process prescribed by law.

51 In this instance, the learned Magistrate seems to have been content to receive the sentencing submissions made by counsel on behalf of the complainant and did not feel it necessary to disbelieve or have any cause not to accept as correct in substance any of the facts or matters asserted by counsel. As a result, it fell to the learned Magistrate to consider what matters were in fact relevant in the exercise of his sentencing discretion.

52 The principles applicable to an appeal against sentence, confirmed by the High Court in Dinsdale (supra), apply here. Section 6 of the Sentencing Act1995 (WA) provides as follows:

"(1) A sentence imposed on an offender must be commensurate with the seriousness of the offence.

(2) The seriousness of an offence must be determined by taking into account —


(a) the statutory penalty for the offence;

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;

(c) any aggravating factors; and

(d) any mitigating factors."

53 In Harvey v Robertson [1999] WASCA 120, McKechnie J, in dealing with an appeal against sentence pursuant to the Justices Act,listed the following factors as relevant in determining whether a fine is appropriate and the amount of the fine. At par [7] of the unreported decision, his Honour said:

Therefore, a proper approach is to assess the offence first to determine whether a fine is the sentencing option which best meets the circumstances of the case. Once that has been determined, attention should focus on the amount of the fine. The factors to be considered include:

(1) the nature and prevalence of the offence;

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(2) the disapproval of the community for the criminal behaviour, usually referred to as punishment;

(3) the need for deterrence, both general and particular;

(4) the antecedents of the offender; and

(5) where the crime is economic or commercial, the need to ensure that a fine is not simply a risk tax to be paid if caught."

54 In this case, a fine was the required penalty. While the learned Magistrate in imposing the sentence of a fine did not enumerate either the requirements of s 6 of the Sentencing Act or any other provisions of the Sentencing Act, or allude in any systematic way to the types of factors that McKechnie J identified in Harvey v Robertson, nonetheless it can be seen that the learned Magistrate did regard the substance of matters set out in s 6 of the Sentencing Act and did generally regard the factors identified by McKechnie J as relevant in determining whether a fine should be imposed and the amount of any such fine.

55 For my own part, having regard to the matters set out in s 6 of the Sentencing Act and the types of factors listed by McKechnie J in Harvey v Robertson, I do not consider it can be said that the learned Magistrate made any error in approaching the sentencing decision in the manner that he did. The question remains, however, whether it can be said that the sentence imposed was excessive in the terms described by Gleeson CJ and Hayne J in Dinsdale (supra).

56 Counsel for the appellant reasonably raised the issue whether a number of matters put before the Magistrate concerning the non-conforming prior conduct of the appellant in relation to the demolition licensing system were relevant. In my view, it is fair to observe that the mention of such matters, which were not themselves the subject of prior offences, could well have influenced the learned Magistrate in the formulation of the penalty he though appropriate. Given that there was no evidence that the appellant had been prosecuted and convicted in relation to these other, alleged non-conforming matters, indeed the evidence was to the contrary, it is difficult to discern how they could be considered relevant to the exercise of the sentencing discretion. If the presumption of innocence continues to apply in the sentencing process, as it must, an allegation that a person has offended on prior

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occasions, though not convicted, not only has a hollow sound to it, but must be irrelevant, at least in ordinary circumstances.

57 The sentencing submissions complained about are those that reflected on the "problems" the appellant had allegedly caused on prior occasions. On the one hand, counsel for the complainant may be said to have made such observations in a context which was immediately developed by him in putting what were relevant factors and facts before the Magistrate. For example, counsel for the complainant advised the Magistrate that the appellant had been previously prosecuted in the Court of Petty Sessions on 14 July 1998 and, by inference, convicted and penalised on that date. The point of these submissions to the Magistrate was that the Court had, on an earlier occasion, advised the appellant, through Mr Gitsham, that it had been "treated leniently, but that he should ensure that demolition licences had actually issued in the future, before commencing work". In the context in which the submissions by counsel for the complainant were made, the particular assertion that preceded these facts, namely, that there had been a "considerable number of problems for the Town in past demolition matters", and there had been "warnings", may be said to have been minimised so far as their likely adverse effects on the sentencing discretion of the learned Magistrate were concerned.

58 On the other hand, the alleged non-conforming prior conduct of the appellant in relation to the demolition licensing system was mentioned more than once by counsel for the complainant and not always in a limiting context. For example, in the second paragraph of counsel's sentencing submissions to the learned Magistrate, he observed that: "In the present case, the contractor didn't contact the Town, and in view of previous problems with this particular contractor … ". The nature of the "previous problems" was not then immediately identified. It was left at large. Such submissions began to create the negative impression that the appellant was a prior contravenor of the demolition licensing system, even if the appellant had not earlier been convicted for offences against that system. In the fourth paragraph of the sentencing submissions, counsel submitted (as noted earlier) that: "This particular company has caused some considerable number of problems for the Town in past demolition matters. Following warnings, the company was prosecuted in this Court on the 14th of July 1998 … ". Then, in the fifth paragraph, counsel advised the learned Magistrate that: "Following that conviction, the Town had two more instances of the company demolishing houses prior to licences issuing. On that occasion, Mr Gitsham applied to the council to have no action taken by way of prosecution … ". Counsel then mentioned

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that: "Council elected to take no action on those occasions but wrote to the company on the 28th of May of this year … ". In the seventh paragraph of his submissions, counsel then suggested to the learned Magistrate that: "This company seems to treat the possibility of prosecution as a bit of an operational expense … ".

59 In my view, it would have been extremely difficult for the Magistrate to have excluded from his consideration of the appropriate sentence the alleged non-conforming prior conduct in relation to demolition licensing matters. The comment that the company seems to treat the possibility of prosecution as "a bit of an operational expense", in particular, could only be justified on the basis of this alleged non-conforming prior conduct, when added to the one prior conviction and the particular circumstances of the instant case. Without the ingredient of the alleged non-conforming prior conduct, however, it would be difficult to sustain this comment by counsel for the complainant. It was this particular way of viewing the conduct of the appellant that led counsel for the complainant to submit that a deterrent penalty was needed on this second conviction and, seemingly, the learned Magistrate to accept the submission.

60 In my view, at least in circumstances such as the present, it is not relevant to the exercise of the sentencing discretion that the complainant believed that the defendant had conducted itself contrary to the law on prior occasions in relation to demolition licensing matters, if, in fact, the complainant had chosen not to prosecute on those prior occasions. It is unfair to paint a defendant as a serial offender if, in truth, there has only been one prior conviction for the offence complained of.

61 That said, in my opinion, the advice contained in the letter of 28 May to the appellant was a relevant factor to be taken into account in the sentencing process. It provided a context in which, a month later, the appellant chose to act in a way which defied the advice of the Town that demolition licences were needed prior to commencing demolition.

62 I remain concerned, however, that the references in the sentencing submissions of counsel for the complainant to largely unspecified, non-conforming prior conduct in relation to the demolition licensing system were in the circumstances of the present case, strictly irrelevant to the sentencing process, and may have influenced the learned Magistrate in imposing a deterrent penalty of $9000. When these matters are taken into account with the third contention in support of the ground of appeal, to which I now turn, I am inclined to think that the penalty imposed was excessive in the circumstances.

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63 The third contention particularised in par (3) of the ground of appeal is that the sentence is "excessive" is that the appellant did not have a previous record such that a fine of the magnitude imposed was appropriate. In support of this contention, counsel for the appellant stated that the fine imposed represented a little more than a third of the maximum that could have been imposed. As noted above, the maximum fine for a corporate offender in a case such as this, was $25,000. While there was no evidence before the learned Magistrate to this effect, counsel for the appellant said from the bar table that a fine had been imposed on the earlier conviction of the appellant of "about $300". Having regard to the position taken by the appellant through counsel at the outset of the appeal, there was in fact no evidence of the amount of the earlier fine imposed. For the purposes of this appeal, I will assume nothing concerning the amount of the fine imposed on the occasion of the earlier conviction.

64 Counsel for the appellant further contended that it could not be said that there "was an extensive record of offending as opposed to saying that there was a prior record". As I understood this submission, the point was that the prior record - that is, the prior offence - was a matter of record and could not be said to be an "extensive" record. That, no doubt, is true. That prior offence had, as counsel for the appellant pointed out, occurred some four years, or perhaps three years, prior to the conviction the subject of this appeal. Counsel for the appellant contended that, in the intervening period, there was no evidence of any other "incident". However, against this, there was the information before the Magistrate that the letter of 28 May 2001 had been issued by the Town of Cambridge to the appellant putting it on notice of the need to collect licences and pay fees before commencing demolition. Whilst that may or may not be described as an "incident", it certainly provided a reminder to the appellant of its obligations under the Local Government Act concerning demolition activities.

65 The appellant argues that, in the circumstances as they were considered by the learned Magistrate in his final assessment of the matter, a fine of $9000 was simply "out of proportion" to what was alleged to have been done - or not done - when compared with the maximum penalty provided for by the law. I consider there is merit in this argument.

66 There can be little doubt that a fine of $9000 for a second offence of this type is high in a context where the maximum fine that can be imposed is $25,000. But the question is whether it is "excessive" in terms of s 186(1)(a)(iii) of the Justices Act. In my view, it cannot be shown that

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the Magistrate failed to address any relevant consideration when he imposed the sentence that he did. That is not to say, of course, that a sentence may not be considered "excessive" simply because the relevant sentencing factors have apparently been considered.

67 In this case, it is of relevance to note that the Magistrate was aware that the appellant had been previously convicted of a like offence only three years (in July 1998) prior to the offence the subject of this appeal, and that only a calendar month prior to the commission of the second offence, the Town of Cambridge, by its letter dated 28 May 2001, had placed the appellant on notice and advised it of the need to collect licences and pay fees prior to commencing demolition works. Moreover, the fact before the learned Magistrate was that, on the day the offence was detected by officers of the Town, both when an officer spoke to Mr Gitsham of the appellant by telephone and later when officers of the Town attended at the demolition site and spoke to Mr Gitsham, the appellant evinced an intention to proceed with the demolition regardless and subsequently did nothing to halt the demolition then in progress. Indeed, the Magistrate was advised that Mr Gitsham effectively challenged the Town to prosecute the appellant when an environmental health officer first telephoned him on the day in question. Such conduct, taken as a whole, indicated a certain disregard for the requirements of the law governing demolition which, in my opinion, in all of the circumstances, entitled the Magistrate to impose a substantial fine, which he was invited to do by counsel for the complainant, that would be perceived of as having a "deterrent effect".

68 However, in my view, taking into account these same matters, but excluding from consideration the alleged non-conforming prior conduct of the appellant in relation to the demolition licensing system, a fine of $5000, together with costs, would have constituted an adequate "deterrent penalty" of the type called for. In these circumstances, the imposition of a fine of $9000 was "excessive". It can only be explained on the basis that the appellant was, in fact, considered responsible for other breaches of the demolition licensing system for which he had been fortunate enough not to have been prosecuted and convicted.

69 In these circumstances, I would impose a fine of $5000, together with costs as previously awarded. To that extent, I would allow the appeal.