Kwa v City of Stirling
[2001] WASCA 370
•23 NOVEMBER 2001
KWA -v- CITY OF STIRLING [2001] WASCA 370
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 370 | |
| THE FULL COURT (WA) | |||
| Case No: | SJA:1115/1998 | 23 AUGUST 2001 | |
| Coram: | MALCOLM CJ MILLER J ROBERTS-SMITH J | 23/11/01 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | FRANCIS TAK LAU KWA CITY OF STIRLING |
Catchwords: | Local government Town planning Building control Use of land and construction on land contrary to provisions of Town Planning Scheme and relevant legislation Whether penalties imposed on appeal to single Judge were manifestly excessive |
Legislation: | City of Stirling Town Planning Scheme No 2 Town Planning and Development Act 1928 (WA), s 10(4)(a)(i) Sentencing Act 1995 (WA), s 6(1), s 6(2)(b), s 54 |
Case References: | Kwa v City of Stirling, unreported; FCt SCt of WA; Library No 950594; 8 November 1995 Re City of Stirling; Ex parte Kwa, unreported; SCt of WA; Library No 940674; 1 December 1994 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : KWA -v- CITY OF STIRLING [2001] WASCA 370 CORAM : MALCOLM CJ
- MILLER J
ROBERTS-SMITH J
- Appellant
AND
CITY OF STIRLING
Respondent
Catchwords:
Local government - Town planning - Building control - Use of land and construction on land contrary to provisions of Town Planning Scheme and relevant legislation - Whether penalties imposed on appeal to single Judge were manifestly excessive
Legislation:
City of Stirling Town Planning Scheme No 2
Town Planning and Development Act 1928 (WA), s 10(4)(a)(i)
Sentencing Act 1995 (WA), s 6(1), s 6(2)(b), s 54
(Page 2)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : In person
Respondent : Mr J L Sher
Solicitors:
Appellant : In person
Respondent : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Kwa v City of Stirling, unreported; FCt SCt of WA; Library No 950594; 8 November 1995
Re City of Stirling; Ex parte Kwa, unreported; SCt of WA; Library No 940674; 1 December 1994
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: This is an appeal to this Court by leave granted by this Court (Ipp, Murray and Anderson JJ) on 19 July 1999 limited to grounds A, B and F of the appellant's notice of motion for leave to appeal dated 30 June 1999. The Court also ordered that the appellant file an affidavit relating to new evidence within 21 days of the date of the order granting leave.
2 The leave to appeal was granted in respect of an order made by Scott J on an appeal by leave against a decision of his Worship Mr Burton SM on complaints Nos 10699, 10700 and 10701 by the City of Stirling against the appellant in the Court of Petty Sessions at Perth on 26 June 1998.
3 Each of these complaints related to the alleged use of land in the City contrary to the provisions of the City of Stirling District Planning Scheme No 2 contrary to s 10(4)(a)(i) of the Town Planning and Development Act 1928 (WA). Section 10(4)(a)(i) provides that –
"Any person who –
(i) contravenes or fails to comply with the provisions of a town planning scheme …
is guilty of an offence."
- The maximum penalty prescribed by this provision for such an offence is $50,000, and a daily penalty of $5,000.
4 The learned Magistrate found that the complaints had been proved and in respect of each complaint imposed a fine of $10,000 and a daily penalty of $100 in respect of the period of some 343 days the appellant was found to be in breach of the provisions of the scheme. The total amount of the fines was $135,555.
5 The appeal came before Scott J by leave to appeal granted by Wheeler J pursuant to s 187 of the Justices Act 1902 (WA) on 25 September 1998. The appeal was against the decision of the learned Magistrate on the three complaints in the Court of Petty Sessions at Perth by which the learned Magistrate found that the complaints were proved and imposed the penalties mentioned. The grounds upon which Wheeler J granted leave were as follows:
"1. The Applicant have leave to appeal from the whole of the decision of Mr Burton SM given on the abovementioned complaints in the Court of Petty Sessions at Perth on
(Page 4)
- 26 June 1998 whereby the Learned Magistrate found the complaints proven, the grounds for appeal being are as follows -
- (a) The learned Magistrate erred in imposing a total penalty that was excessive in the circumstances.
(b) The learned Magistrate erred by refusing to disqualify himself from hearing the trial upon the Applicant's request to do so on account of previous dealings; and
(c) The Respondent was, by its prior conduct estopped from instituting proceedings against the Applicant."
6 The appeal was directed to be heard by a single Judge. It was also ordered that there be a stay of execution in relation to the penalty imposed by Mr Burton SM on 26 June 1998, pending the hearing of the appeal.
7 The appeal was heard by Scott J on 17 December 1998 and judgment was delivered on 11 February 1999. The appeal was allowed and the learned Judge ordered that in lieu of the fines ordered to be paid by the learned Magistrate, there be a single fine of $10,000 together with a daily penalty of $100 for each of the 343 days the subject of the offences. In addition to the costs of the respondent ordered to be paid by the learned Magistrate upon conviction, the appellant was ordered to pay 50 per cent of the respondent's costs of the appeal to be taxed and also the respondent's costs thrown away in respect of affidavits not relied upon and abandoned prior to the hearing of the appeal, these likewise to be taxed.
8 The appellant applied for leave to appeal from the decision of Scott J by an application dated 10 May 1999. That application was refused by Scott J on 28 May 1999. The appellant renewed his application for leave by a notice of motion dated 30 June 1999 on the following grounds:
"A. His Honour Scott J failed to take account of the appellants' financial circumstances in determining the quantum of the penalty to be imposed, contrary to sentencing principles.
B. Scott J erred in attaching considerable weight to the conclusions of the applicant's financial means reached by Burton SM, which were based on insufficient evidence.
(Page 5)
- C. Scott J erred in concluding that the offence complained of was more than merely a technical breach of the Town Planning and Development Act 1928 (WA).
D. His Honour failed to reach or attempt to reach a fair and just outcome in apportioning costs.
E. His Honour erred in order [sic ordering] that the applicant pay the respondents costs thrown away of the affidavits not relied upon and abandoned prior to the hearing of 17 December 1998.
F. The interests of fairness and justice require that the appellant be granted an opportunity to introduce evidence of his financial predicament in relation to the sentencing principle contained in s53 of the Sentencing Act 1995."
9 On 19 July 1999 Scott J granted leave to appeal but only on grounds A, B and F of the notice of motion. It was also ordered that the appellant file an affidavit relating to new or fresh evidence. The appellant filed an affidavit sworn on 9 August 1999. On 17 September 1999 the Full Court ordered that the respondent have leave to cross-appeal and have leave to introduce evidence in response to the affidavit of the appellant affirmed on 9 August 1999. It was in accordance with those directions that Mr Johnson, Executive Manager–Development of the City swore an affidavit on 3 August 2000 by way of reply to the appellant's affidavit of 9 August 1999 and a further affidavit sworn by the appellant on 16 August 1999.
10 It will be seen at once that this appeal is limited to matters related to the quantum of the penalties imposed.
11 I have mentioned these matters in some detail because the appellant has relied on the appeal book used in the appeal heard by Scott J in this appeal. No supplementary appeal book has been prepared in relation to the present appeal. Neither the reasons for judgment of Scott J nor the papers relating to the application for leave to appeal were included in the papers put before us. Nevertheless, the Court itself has put together the necessary papers required for the purposes of hearing the appeal in order to expedite the matter and avoid an adjournment.
12 In compliance with the order of Scott J dated 19 July 1999 the appellant filed an affidavit sworn by him dated 9 August 1999 relating to his financial circumstances.
(Page 6)
13 The relevant complaints related to Lot 180 (House No 24), Lot 181 (House Nos 26 and 28) and Lot 183 (House No 30) in Wheatcroft Street in Scarborough within the City of Stirling. The three complaints alleged that between 1 February 1997 and 8 January 1998, both dates inclusive, the appellant, trading as Mandarin Gardens Scarborough, within the District of the City of Stirling at each of the respective lots, being land within the Medium Density Zone of the City of Stirling pursuant to the provisions of the City of Stirling District Planning Commission No 2, "did use the said land contrary to the provisions of the said Scheme, contrary to section 10(4)(a)(i) of the" Town Planning and Development Act 1928.
14 In response to a question from the learned Magistrate the appellant confirmed that there was an admission that the appellant had conducted the relevant business on the land contrary to the zoning provisions in the City's Scheme. There was an attempt to resolve the matter by the City agreeing to consider a rezoning application, but only in the context of a requirement by the respondent City for the appellant to "… provide clarification of your intentions regarding outstanding legal matters should rezoning proceed to gazettal". At that stage the appellant had a number of proceedings against the respondent City pending in the Supreme Court. It is apparent that the respondent wanted some assurance that, if it agreed to the rezoning, these other matters would be resolved.
15 In a lengthy affidavit affirmed on 22 August 2001 the appellant has set out his personal background, his version of the history of his use of the land since 1971 and, in particular, his use of the land or part of it as a holiday resort for short-term accommodation for tourists and backpackers since about 1983. In 1985 he applied to the City for a Boarding House Licence, which was refused. He says he did not pursue this because he claimed a non-conforming use right. In 1989 the appellant made an application for approval to carry out modifications to the "lodging house" (as the appellant described it) but approval was refused.
16 The appellant continued to use the land contrary to the Scheme and was subsequently prosecuted in November 1992 and convicted of use of the land contrary to the Scheme. In the meantime he attempted to obtain a rezoning of the land by an application dated 8 August 1994. This was the result of an approach by two members of the Council in an apparent endeavour to put matters to rights. By a report dated 7 June 1994 the Chief Executive of the City reported that the appellant had taken "a number of actions against the City". The City had indicated to the appellant before the original legal action that "a rezoning application would be considered formally". The City's solicitors had informed the
(Page 7)
- appellant that the City would be prepared to consider rezoning and approval of "the use of the land to which the property is currently put, provided all legal proceedings were discontinued with each party to bear its own costs".
17 The appellant's response was to bring proceedings for the issue of a writ of mandamus to require the City to consider and determine his application for rezoning according to law. An order nisi for the issue of a writ of mandamus against the respondent was made by White J on 31 October 1994 in the following terms:
"The above named Respondent do show cause before a single Judge in Chambers why a writ of mandamus should not be issued against the Respondent directing it to show cause why:
(a) it should not consider and determine the applicant's application for rezoning of the land, being Lots 180, 181, 182 and 183, Wheatcroft Street, Scarborough, without reference to the three proceedings previously instituted by the Applicant against the respondent in this Honourable Court and pending; and
(b) it should not pay the Applicant's costs."
18 In Re City of Stirling; Ex parte Kwa, unreported; SCt of WA; Library No 940674; 1 December 1994, Walsh J concluded that a writ of mandamus should issue for the following reasons:
"In the present circumstances the respondent had a discretion which it had a duty to exercise for the purposes for which it was conferred, and, in conformity with the legislative policy disclosed by the Town Planning and Development Act 1928 (the Act).
It was a discretion which had to be exercised in accordance with the law, taking all relevant considerations into account, omitting irrelevant ones, and not being influenced by any ulterior motives: See Congreve v Home Office [1976] QB 629 at 649.
In my opinion, having regard to the background to the resolution adopting the recommendations of the Town Planning Department and Statutory Services Committee, it is apparent that the respondent failed to exercise its discretion in accordance with the law by taking into account irrelevant
(Page 8)
- considerations, viz outstanding proceedings previously instituted by the applicant against the respondent and potential liability for costs thereby incurred.
I believe that, in this case there was an 'erroneous abdication of duty' and that mandamus does lie. I accordingly hold that a writ of mandamus should issue to the respondent to consider the applicant's application for re-zoning according to the authority conferred upon it by the Act.
I would make the order nisi absolute for the issue of a writ of mandamus."
19 In the meantime the appellant had appealed against his conviction in the Court of Petty Sessions on 13 November 1992 in respect of the offences of using the subject land contrary to the provisions of the City's Scheme and s 10(4)(a)(i) of the Town Planning and Development Act. The appeal had been dismissed by Ipp J on 9 March 1993. The appellant sought and obtained leave to appeal to the Full Court from that decision. The appeal was dismissed by a unanimous decision of the Full Court (Rowland, Franklyn and Walsh JJ): Kwa v City of Stirling, unreported; FCt SCt of WA; Library No 950594; 8 November 1995.
20 Following that decision the City processed the appellant's rezoning application. By letter dated 8 February 1995 the City Manager informed the appellant that:
"The application for rezoning of the above premises, was referred to the January meeting of the Town Planning and Statutory Services Committee for consideration.
Council on 7 February 1995 resolved to adopt the committee's recommendation that you be advised that Council is prepared to initiate rezoning procedures subject to:-
1. Advertising in accordance with normal rezoning procedures.
2. Rezoning Lots 180-183 (inclusive) Wheatcroft Street to 'Special Use Zone - Holiday Units and Boarding House'.
3. Payment of rezoning fees.
4. Amalgamation of the lots.
(Page 9)
- 5. The submission of detailed plans of the development (13 units, old house and duplex) including internal layout for assessment by the Health and Planning Departments to permit formal development approval to be issued.
6. Compliance with all Health requirements and Fire regulations.
On your acceptance of the conditions and payment of fees, District Planning Scheme No 2, Amendment No 247 will be adopted, signed and forwarded to the State Planning Commission for approval to advertise.
The rezoning fees are $1300, comprising $150 on application, $1000 on adoption of amendment and $150 on final gazettal. To date you have paid $152, so the rezoning fee to be paid on your acceptance of conditions is $998. $450 is reimbursed if preliminary approval of the Minister to the rezoning is not granted.
Any further queries may be referred to the Manager, Planning Services, Mr Stuart Johnson."
21 Thereafter, the rezoning does not appear to have proceeded because the City required the lots on which the development had been constructed to be amalgamated. As is apparent from pars 3.1 - 3.3 of his letter to the Chief Executive Officer of the City dated 8 December 1997, the appellant's position on this issue was:
"3.1 During the Conference of 13 November, it appeared that the major concern of the City was that of the amalgamation of the land which is in dispute. However, as I maintain that amalgamation is not a town planning principle, the Council is obliged to initiate re-zoning by order of the Supreme Court. Until and unless the land is rezoned, the operation remains lawful, as outlined in the Mandamus (a copy judgement is appended hereto at Annexure 'E').
3.2 Amplification is made that the Town Planning Act can only be used to prosecute through the Justices Act 1902. However, pursuant to section 51 of the Justices Act a prosecution must be made within 12 months of the discovery of the offence (Rabczynski v Morrison [1986]
(Page 10)
- WAR 71, see Annexure 'F'). The current land use must therefore be lawful, as the offence has been known to you since 1992, and has not been prosecuted. Section 7B(7)(b) of the Town Planning and Development Act is the section relevant to prosecution for a continuing offence. This was not used by the City, rather I was prosecuted under s7B(7)(a), which provides a one-off penalty for a specified period. In excess of 12 months has now lapsed since this prosecution, therefore the City is out of time to sue me for the current land use (See Annexure 'G' for copy of relevant sections).
- 3.3 Notwithstanding the foregoing paragraph (3.2), the use of my land cannot be unlawful in view of the mandamus issued by the Supreme Court of Western Australia on 1 December 1994. This mandamus compels the City to rezone the land in accordance with town planning principles; and accordingly, I have applied for the City to initiate rezoning procedures. The only obstacle to the application is that we do not appear to agree on the status of the amalgamation of the land as a town planning principle. I maintain that, with the present improvements on the land there is no need for amalgamation in order to satisfy town planning principles. I realise that further development cannot take place without amalgamation of the land. However, in order for the land to reach its full potential for holiday accommodation, development is necessary. I would thus have no objection but to amalgamate the land, and am in the process of designing architectural drawings to develop it in accordance with the terms of the mandamus, and the Lord Mayors recently publicised vision (see Annexure 'H', Stirling Times November 11-17, 1997). Naturally, the fulfilment of my vision will require greater co-operation from the City."
22 By a letter dated 21 January 1998 the solicitors for the City informed the appellant that the City did not agree with the position set out by the appellant in the document dated 8 December 1997 and declined to settle any of the matters in the manner suggested by the appellant.
23 The appellant then sought legal advice. He has included in the appeal book an edited version of a letter of advice dated 13 February 1998. That letter contains advice in the penultimate paragraph which
(Page 11)
- appears to be to plead not guilty to the complaints, but there are words omitted between "We confirm" and "our advice has been to plead not guilty to the complaints" and also three lines of text omitted following the word "complaints".
24 By 18 June 1998 the appellant had obtained the consent of the mortgagee of the subject land to amalgamate part of Lot 181 and Lots 182 and 183.
25 At the hearing of the appeal before Scott J the appellant was represented by experienced counsel. The learned Judge noted that the three complaints were in common form and related respectively to the three lots to which I have referred. It was common ground that the appellant conducted a backpackers' hostel which covered the three lots. On one lot there was a substantial building which was the primary accommodation building of the hostel. A swimming pool was situated on a second lot and on the third there was an old house, which was used as part of the backpacker holiday accommodation. The complaints alleged that each of them was zoned medium density residential and that the appellant used the lots in a manner contrary to the zoning requirements. As has already been seen, the only ground on which the appellant succeeded before Scott J was that the learned Magistrate had erred in imposing a total penalty that was excessive in the circumstances.
26 In the result, the penalty which was imposed by the learned Judge on appeal was one-tenth of the lump sum maximum penalty, being a single fine for each of the three charges, and the daily penalty was one-fiftieth of the maximum daily fine.
27 The appellant sought to make use of an affidavit of one Peter Robert Thomas affirmed on 20 August 2001. Mr Thomas is the appellant's accountant who exhibited profit and loss accounts of the appellant for the years ended 30 June 1997 and 1998 and provided other income tax figures in the period 1991-1992 to 1997-1998. While this affidavit had been filed in the Court, no application for leave to rely upon the affidavit was made. The affidavit had been served on the solicitors for the respondent the day before the hearing. Leave to rely upon the subsequent affidavit of Mr Thomas was refused. In any event, the material was quite inadequate to enable the Court to have formed any judgment about the appellant's true financial circumstances.
28 The basic point made by the appellant was that the amount of the penalty fixed by the learned Judge was far in excess of what it should
(Page 12)
- have been, having regard to the appellant's application to rezone the land and the manner in which it was dealt with by the City. Following the decision by Walsh J to which I have referred, the Council indicated that it was prepared to rezone the land and the only outstanding condition to be satisfied was the amalgamation of the three lots. The appellant stated that he did his utmost to have the lots amalgamated, but it was necessary for him to obtain consent from the mortgagee who had security over the land for repayment of financial accommodation provided to the appellant, which was not forthcoming. It was conceded by the appellant that the requirement of amalgamation by the City was reasonable.
29 In any event, the appellant did not oppose the amalgamation of the land and apparently did his best to secure amalgamation, but the relevant consent of his mortgagee was not forthcoming. This, of course, was no fault of the Council. The appellant also maintained that, during the same period, on 8 November 1995 he made application for special leave to appeal to the High Court against the decision of the Full Court which was not heard and disposed of until 8 December 1997 when leave to appeal was refused.
30 The position was that from the time the appellant was first convicted, the proper course for him to adopt was to stop using the land as a backpacker hostel unless and until he succeeded in having the decision of the Court of Petty Sessions overturned. Notwithstanding the earlier conviction and the dismissal of his appeals to Ipp J and the Full Court, the appellant continued to use the land unlawfully. The unlawful use even continued after the High Court decision which led to the convictions the subject of the present proceedings, which were recorded in the Court of Petty Sessions on 26 June 1998, some seven or eight months after the High Court decision.
31 In the meantime, the appellant had received a letter from the City of Stirling dated 8 February 1995 informing him that on 7 February 1995 the City had resolved that the appellant be advised that it was prepared to initiate rezoning procedures, subject to various conditions, one of which was the amalgamation of the lots. I have already dealt with the reason why that did not occur, but it also appears that the appellant was only prepared to reach an agreement with the City if the City paid the appellant $40,000 to settle a dispute about his signage on the land. By a letter dated 21 January 1995 the City had already indicated that it was not prepared to pay the appellant any sum of money to settle the sign case and was not prepared even to negotiate on the matter.
(Page 13)
32 The appellant maintained that the fine was excessive because he was carrying on the use of the land on the understanding that he was entitled to do that on the basis of legal advice, until all appeals were exhausted. In pars 5 and 6 of his affidavit sworn 25 June 1998 the appellant said:
"5. On 11 November 1992, I was convicted under s 10(4)(a)(i) of the Town Planning and Development Act 1928 (WA) for using the land contrary to the provisions of the City of Stirling District Planning Scheme (No 2).
6. Nevertheless, the land use remained lawful until all avenues of appeal had been exhausted on 14 November 1997.
i) The High Court refused leave to appeal on 24 October 1997 in appeal P32 of 1996 (1st Page of Transcript: Annexure 'A').
ii) Under the High Court Rules, an appellant has 21 days to apply for a reconsideration.
iii) I understand from a telephone conversation with Dr Popple, the Deputy Registrar of the High Court, that the land use did not become lawful until the expirey [sic] of this period.
5.[sic] Since then the land has once more been used contrary to the provisions of the City of Stirling District Planning Scheme (No 2)."
- This affidavit was provided to the learned Magistrate.
33 In the following paragraph of his affidavit (incorrectly numbered 6), he said:
"I am defending this prosecution because I have received legal advice that I have an arguable defence (Annexure 'B'). However, I am forced to defend myself because Barrister David van Zalm is away on a 12 month holiday and I cannot afford alternative representation."
34 Annexure "B" to the affidavit was a letter from Mr van Zalm to the appellant's solicitors as follows:
(Page 14)
- "Mr Kwa telephoned me on 10 February 1998 to advise that he had been served with a complaint from the City of Stirling under the Town Planning and Development Act. The return date of the summons is some time in late February. It is likely that Mr Kwa has an arguable defence. He asked me to represent him on this matter. I suggested that he contact your office and that you could instruct me. … It may be that Mr Kwa will appear on his own behalf to enter a plea of not guilty and have the matter sent off to trial."
- It does not appear whether or not this was followed up and the nature of the defence was not specified. In this context, Scott J said at p 6 of his reasons:
"It is of significance in considering a penalty that the appellant was convicted of similar offences in November 1992 under the Act as it then was and where a different penalty structure existed. At that time, the maximum penalty was a fine of $2,000. It nonetheless remains the undisputed fact that the appellant has continued to use the land as a backpacker hostel and continued to do so up to the date of hearing of this appeal on 17 December 1998. It should, however, be said that the 1992 convictions were the subject of appellate proceedings which were heard in the High Court of Australia on 24 October 1997."
It is apparent, therefore, that the pending proceedings in the High Court were taken into account in fixing the appropriate penalty.
35 We were told by the appellant that, after the decision of the High Court, he acknowledged that the lots had to be amalgamated and said that he did all that he could to obtain the consent of the mortgagees. He asserted that enquiries indicated that the value of the amalgamated lots would not be any less than the value of the three separate lots. Consent was obtained from Elderslie Finance, the mortgagee in respect of Lots 181, 182 and 183 by letter dated 18 June 1998. It is apparent that Scott J took into account all of these matters which were referred to in the appellant's affidavit. As to this, the learned Judge said:
"A perusal of the affidavit, however, indicates that it is partly directed towards a defence to the charges and partly directed towards mitigation of penalty. To the extent that the affidavit is directed towards the former matter, it has no relevance to these proceedings in view of the fact that the guilt of the appellant is
(Page 15)
- not in issue. To the extent that it reflects upon the latter issue, the affidavit is a compilation of matters which the appellant sought to have the Magistrate take into account in mitigation of penalty. To the extent that the material is relevant to penalty, in my opinion, it can properly be taken into account but its relevance, even in that respect, is at best marginal, as these reasons will reveal.
As the submissions were developed by counsel for the appellant, the central thrust of the submission was that the penalty imposed by the learned Magistrate was in all the circumstances excessive. Whilst it was conceded that the land was not appropriately zoned for the use which the appellant was making of it, the evidence makes clear that the appellant had sought to have the land rezoned. The respondent had no objection to an appropriate rezoning and was assisting the appellant in that respect. However, as the Town Planning and Development Act 1928 makes clear, at the end of the day rezoning is a matter for the appropriate Minister.
The substance of the respondent's objection to the appellant's use of the land contrary to the zone was that the respondent was unable to exercise proper control over the land, and in particular in relation to health considerations."
- The learned Judge then set out the history of the penalty and the previous conviction in November 1992 for similar offences, taking into account the appeal to the High Court. Having referred to the earlier offences and the appeal to the High Court, the learned Judge continued:
"It is important in considering the ground of appeal under consideration to take into account that the appellant was using these premises for commercial purposes. It is common ground that the backpacker hostel was a source of income for the appellant, although the extent of that income is a matter of dispute. The learned Magistrate in the court below, who had the advantage of seeing photographs of the premises, said in imposing penalty:
'I take into account the nature of the operation that he's got there, which I must admit absolutely staggered me when I saw the photographs, having no idea whatsoever about it. I thought it would be some ordinary common old garden cottages, but it's a far greater organisation than that, and the
(Page 16)
- fact that it may have raised some hundreds of thousands of dollars, perhaps $200,000 a year.'
- Whilst it is not necessary to make any judgment as to the nature and extent of the appellant's profit from the use of the premises, the fact of significance is that the appellant has substantial receipts from the operation of the premises in that way. Expressed another way, the appellant's unlawful use of the premises is a commercial undertaking from which the appellant derives income."
36 It is apparent that the profit and loss account for the year ended 30 June 1998 included in the papers does not disclose the full income received from the operation of the business as, under the heading "Mandarin Gardens", the profit and loss account for the appellant dated 30 June 1998 and the year ended 30 June 1997 shows an item "Distribution from Trusts The FTL Kwa Trust" of $6,719 and $9,821 respectively. Rents received in those two years were $211,375 and $220,462 respectively. Total income declared for the two years was $243,068 and $277,211 respectively which the learned Judge, as well as the learned Magistrate, were entitled to take into account when fixing the penalty having regard to the number of years over which the unlawful use had continued.
37 In my view, Scott J rightly considered that the central matter for resolution in the determination of the amount of the penalty to be imposed was whether the learned Magistrate was correct in law in imposing separate penalties in relation to each complaint.
38 Section 11(1) of the Sentencing Act 1995 (WA) relevantly provides that:
"If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences."
39 As to this, the learned Judge said:
"It is common ground that each of the lots the subject of the complaints were part of the overall premises used as the backpackers' hostel. Whilst it is appropriate to say that there
(Page 17)
- were different structures on each lot, it is also equally the fact that the three lots together were used as backpacker premises. In some respects the case is not unlike the matter considered by the High Court in Eaton & Sons Pty Ltd v The Council of the Shire of Warringah (1972) 129 CLR 270. That case involved the use of several lots coming under the respondent's town planning scheme in the appellant's business of timber and hardware reselling. The appellant had sought to use part of its land on a different lot for the purpose of stacking timber. The question which arose was whether the use of the particular lot in that way was in breach of the respondent's town planning scheme because it had not been used in that way prior to a specified date. In that case Barwick CJ said at 274:
'Whilst the purpose for which the land was purchased will not, of itself, determine its existing use at any subsequent time, that purpose coupled with the integration of the land with land in undoubted business use will, in my opinion, be an important factor leaning towards the conclusion that the land is currently used for the purpose of the business carried on on the land with which it is integrated.'
In the same sense, it can properly be said that the use of the three lots in this case were an integrated part of the backpackers' hostel."
- In my opinion, this was a totally accurate description of the relevant position in relation to the subject land.
40 Scott J then referred at p 8 of his reasons to s 54(1) of the Sentencing Act 1995, which provides that:
"A court sentencing an offender for 2 or more offences that —
(a) are founded on the same facts; or
(b) form, or are part of, a series of offences of the same or a similar kind,
may impose a single fine for all of the offences."
- As to this, the learned Judge said that:
"In considering the applicability of s 54 to the facts of these cases, the question that arises is whether each of the offences is
(Page 18)
- founded on the same facts. In this case, it is clear from the statement of facts presented to the learned Magistrate by counsel for the prosecution that no distinction was made between the use of each of the lots. That is hardly surprising as the prosecution's case was that each of the lots were part of the overall use of the three lots as a backpacker hostel. Each in that sense was part of a composite whole.
In those circumstances, in my view, this was a case where it was appropriate to utilise the provisions of s 54 of the Sentencing Act 1995 which I have set out, so as to impose one penalty in relation to the three complaints. As I have already indicated, the fine selected was one fifth of the maximum and the daily penalty was one fiftieth of the maximum available to the learned Magistrate. In my opinion, looked at in all the circumstances of the case, it cannot be said that to impose such a penalty in relation to the appellant's use of these three lots was excessive. Nor can it be said that the imposition of the daily penalty was in all the circumstances of the case inappropriate, in view of the appellant's continued unlawful use of the premises in the way I have indicated.
It is of course appropriate for a court to have regard to the totality of the financial burden suffered by an offender as a result of the offence and for the court to impose a penalty which is in keeping with the gravity of the offence: see Flatow v Mullins, unreported; SCt of WA (Smith J); Library No 5207; 1 February 1984.
In all the circumstances therefore, I would allow the appeal to the extent of imposing a single fine in respect of all three complaints in the same terms as imposed by the learned Magistrate. In other words, there will be a single fine of $10,000 and a daily penalty of $100 in relation to all three complaints as provided for by s 54 of the Sentencing Act 1995."
41 In my opinion, the appellant has wholly failed to demonstrate that the penalty so imposed by way of appeal was in any way manifestly excessive. If I may say so, with respect, it was a penalty which was well within the range of a sound discretionary judgment, having regard to the history of the use of the lots and the previous conviction of the appellant.
(Page 19)
42 I would also observe that, when he was before the learned Judge, the appellant contended that the complaints did not put him on notice that he was at risk of a daily penalty. As to that, the learned Judge said:
"[It] is significant to note that the complaints themselves referred to the appellant's conduct during the period between 1 February 1997 and 8 January 1998 and the complaints specifically refer to s 10(4)(a)(i) of the Town Planning and Development Act 1928 so that it should have been apparent to the appellant that the conduct alleged was over a period of time thus giving rise to the prospect of a daily penalty being imposed."
43 There is nothing in the materials to suggest that, at all material times so far as these offences were concerned, the appellant was otherwise than fully aware of the provisions of the legislation which, in any event, he was by law presumed to have known.
44 For the reasons I have indicated, I consider that the appellant's grounds of appeal are wholly devoid of merit.
45 For these reasons I would dismiss the appeal.
Cross-appeal
46 The respondent cross-appealed on the following ground:
"When considering the application of s 54 of the Sentencing Act 1995 and imposing a single fine and daily penalty in respect of the three Complaints against the Appellant rather than the three separate fines and daily penalties imposed by the Learned Magistrate in the Court of Petty Sessions at Perth, the Learned Judge erred in imposing a fine and daily penalty which was one third of the total fine and daily penalty imposed by the Learned Magistrate, thereby imposing a fine and daily penalty which was not commensurate with the seriousness of the offences or appropriate to the circumstances of the commission of the offences, contrary to sections 6(1) and 6(2)(b) of the Sentencing Act 1995."
47 Sections 6(1) and 6(2)(b) of the Sentencing Act provide that:
"(1) A sentence imposed on an offender must be commensurate with the seriousness of the offence.
(Page 20)
- (2) The seriousness of an offence must be determined by taking into account —
…
(b) the circumstances of the commission of the offence; …"
49 The question raised by the cross-appeal is whether the learned Judge erred in the exercise of his discretion to apply a single penalty of $10,000. The learned Judge was clearly conscious of the need to fashion a penalty that was both reflective of the gravity of the offence, as well as a penalty which would be sufficiently severe having regard to the fact that, while there were three separate lots of land involved, they were all being used for the purposes of the conduct of a single business. In my opinion, in these circumstances, it was clearly open to the learned Judge in the exercise of his discretion, having regard to the totality of the circumstances, including the financial position of the appellant, to exercise his discretion in the way in which he did. In the end, the position was that the City was prepared to rezone the land, so as to permit the continued use of it for the purposes for which it was being used unlawfully. Although there were three separate parcels of land, there was a single business operation being carried on the unamalgamated lots. In my view, on the face of it, that was a sufficient ground for fixing a single penalty as an exercise of discretion, once one had come to the view, as his Honour clearly did, that the imposition of three separate penalties, both for the lump sum fine and the daily penalties, was manifestly excessive. In my view, it has not been demonstrated that the course adopted by the learned Judge resulted in the imposition of a fine and daily penalty which was manifestly inadequate, particularly having regard to the evidence of the appellant's financial circumstances.
50 For these reasons, I am of opinion that the cross-appeal should be dismissed.
(Page 21)
51 MILLER J: I have had the advantage of reading in draft the reasons of the Chief Justice in this matter. For the reasons given by his Honour I agree that both the appeal and cross-appeal should be dismissed.
52 ROBERTS-SMITH J: I have had the benefit of reading in draft the reasons published by the Malcolm CJ. I agree with those reasons and have nothing further to add.
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