Kwa v Town of Cambridge
[2019] WASC 444
•13 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: KWA -v- TOWN OF CAMBRIDGE [2019] WASC 444
CORAM: ALLANSON J
HEARD: 20 NOVEMBER 2019
DELIVERED : 13 DECEMBER 2019
FILE NO/S: SJA 1076 of 2019
BETWEEN: FRANCIS TAK LAU KWA
Appellant
AND
TOWN OF CAMBRIDGE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: DEPUTY CHIEF MAGISTRATE E A WOODS
File Number : PE 63827 of 2018, PE 63828 of 2018
Catchwords:
Criminal law - Sentencing - Where appellant breached planning legislation - Where appellant 84 year old aged pensioner - Whether magistrate took account of appellant's means and the extent to which the fine would burden the appellant - Whether fine imposed manifestly excessive by reference to matters including the personal circumstances of the appellant
Legislation:
Building Act 2011 (WA), s 9
Criminal Appeals Act 2004 (WA), s 14
Planning and Development Act 2006 (WA), s 281, s 223, pt 13 div 2
Sentencing Act 1995 (WA), s 6, s 7, s 8, s 9, s 11, s 53, s 54
Result:
Leave to appeal granted on grounds 4, 7 and 10
Appeal allowed
Appellant to be re‑sentenced
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | D P Gillett |
Solicitors:
| Appellant | : | In person |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Caruso v Shire of Augusta‑Margaret River [2016] WASC 379
Chen v City of Stirling [2014] WASC 183
Gowan v The State of Western Australia [2016] WASCA 98
Horrocks v Discombe [2019] WASC 425
Hunter v City of Joondalup [2016] WASC 424
Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586
Kwa v City of Stirling [2001] WASC 370
Paolucci v Town of Cambridge [2013] WASC 50
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81
ALLANSON J:
Title
On 22 May 2019, the appellant Francis Tak Lau Kwa was convicted on two charges that:
Between 22 November 2017 and 30 August 2018 [he] carried out works on land within the Town of Cambridge Town Planning Scheme No I Scheme area without having obtained the development approval of the local government under Part 8 of the Planning and Development (Local Planning Schemes) Regulations 2015,[1] thereby contravening the Scheme contrary to section 218(a) of the Planning and Development Act 2005.
Between 15 September 2016 and 30 August 2018, within the district of the Town of Cambridge, [he] did building work otherwise than in accordance with section 9 of the Building Act 2011, contrary to section 9 of the Building Act 2011.
[1] The prosecution notice must have been intended to refer to pt 8 of sch 2 to the Regulations.
He was sentenced to fines of $80,000 on the first charge, and $10,000 on the second charge, together with costs of $4,000.
The appellant appeals against the order on 10 grounds, alleging errors of fact and law, including that the penalties were manifestly excessive. I set out the grounds in full when dealing with each of them.
The legislation
Section 218(a) of the Planning and Development Act2005 (WA) provides that a person who contravenes the provisions of a planning scheme commits an offence. Paragraphs (b) and (c) create offences for a person who 'commences, continues or carries out a development' otherwise than in accordance with the provisions of a scheme or a condition imposed by the Act or the scheme.
By s 223, a person who commits an offence is liable to a fine of $200,000 and, in the case of a continuing offence, to a further fine of $25,000 for each day during which the offence continues.
Section 9(a) of the Building Act 2011 (WA) provides that a person must not do building work unless a building permit is in effect for the building work. The penalty for a first offence is a fine of $50,000.
The facts
The facts outlined by the prosecution on the pleas of guilty were as follows.
The accused is the owner of a residential property located at 1 Turriff Road in Floreat. In March 2015 the Town granted the accused planning approval for a two-storey addition on the north-eastern side of the existing dwelling. The ground floor level of the extension comprised dining, lounge and kitchen area, and a kid's bedroom. The upper level comprised a lounge, master bedroom and library.
The extension also included the demolition of the existing external lounge wall on the ground floor to create a larger entry/living area with a lift to the upper level, as well as a balcony on the northern side of the upper level lounge and a further balcony on the north-eastern side of the upper level master bedroom.
…inspection of the property by an officer of the city on 22 November 2017 revealed the accused had constructed an additional three bedrooms, each with an en-suite, on the upper level of the dwelling. The three additional bedrooms plus en-suites comprised an additional floor area of approximately 60 square metres.
At the time of the inspection on 22 November 2017 [the first day of the period charged] the steel framing, roofing and external cladding had been constructed, however the existing lounge wall had not been demolished ‑ that's on the ground floor level ‑ and the internal wall, ceilings and lift had not been constructed. Subsequent investigation by officers of the city revealed the construction of the additional rooms on the upper level commenced in around February 2017.
In addition to constructing additional bedrooms on the upper level the accused had also extended the upper level balcony along the north-western or Turriff Road side of the upper level of the dwelling by constructing approximately 20 square metres of additional balcony along that side of the dwelling.
By extending the balcony on the Turriff Road side of the dwelling, the dwelling no longer complied with clause 20[2] of the Town of Cambridge Town Planning Scheme Number 1, which requires that buildings in the Floreat precinct must be set back at least nine metres from the primary street. In this case the extended balcony was set back only eight metres from Turriff Road. As a result the entire extension required a fresh planning approval.
[2] It may be a transcription error: the requirement is found in cl 26.
…
On 1 February 2018 the Town wrote to the accused, advising him that the Town intended to issue a building order requiring him to cease all building work at the property unless he agreed to remove the unauthorised additional rooms on the upper level.
The accused responded by advising the Town that he would apply for retrospective planning approval for the additional rooms, and indeed he did. The accused subsequently applied for retrospective planning approval for those additional rooms, and the balcony extension on 19 February 2018.
To ensure that no further works were carried out while the accused's application for planning approval was being assessed, on 28 February 2018 the Town gave the accused a formal building order requiring him to cease all work on the unapproved bedrooms until a building permit had been obtained for those works.
…
A subsequent inspection of the property by an officer on 30 August 2018, and you will note that that's the last day in the prosecution for both offences, reveal the accused had completed construction of the three additional unapproved bedrooms, and additional balcony on the upper level of the dwelling. The existing lounge wall on the ground floor had been demolished, and the internal walls and ceilings on both levels had been constructed, and new flooring laid. In addition, the lift providing access between the lower and upper levels had been installed.
The accused's application for retrospective planning approval for the unauthorised works was subsequently refused by the Town on 25 September 2018, and as a result at the time of commencing this prosecution, … no planning approval or building permit had been issued for the three additional rooms, and en-suites on the upper level or the extended deck area.
Now, the accused subsequently … applied for, and has been granted now retrospective planning approval, and that happened on 8 March, and that approval had been granted subject to the accused replacing some of the solid balustrade on the balcony on the Turriff Road side with what has now been approved as a steel or see-through balcony for a portion of that.
There's still, at this stage, no retrospective building approval been issued for the structure, although given the planning approval has now been issued it's likely that building approval will follow.
When asked by the Town why [he] constructed the three additional bedrooms and en-suites without planning approval, and without a building permit…the accused advised that he didn't think planning approval was required for the additional bedrooms and that he was surprised that the Town had given him a building order requiring him to cease the works.[3]
[3] ts 3 ‑ 6.
The prosecution submissions
The prosecution submitted that the fact that you can get retrospective approval for structures already erected 'is one of the reasons that the penalties for building without a building permit or building licence as it was back in 2008, and the penalties for planning offences were increased both in 2008 and then 2010'.[4] Whether or not that is true, in sentencing it is necessary to have regard to the substantial increases in penalty enacted in those amendments.
[4] ts 7.
The prosecution further submitted that there was a need for general deterrence due to the need for observance of planning and building controls. Specifically, it submitted that the ability to obtain retrospective approval was not a reason for doing works without approval.[5]
[5] ts 8.
The prosecution submitted that the works done added value of $60,000 to the appellant's home, and in that way were a monetary benefit to the appellant.[6]
The prior convictions
[6] ts 11.
The appellant has previous convictions for failing to comply with the provisions of a town planning scheme (in 1998). He also had a conviction for building a shed and a mezzanine floor in a garage without a building licence (in about 2010).
In relation to the earlier offence, the prosecutor advised the magistrate that the appellant had been fined approximately $135,000.[7]
[7] ts 8 ‑ 9.
The decision in Kwa v City of Stirling [2001] WASC 370, to which her Honour was referred, shows that the appellant had earlier convictions for three offences of using land (not the same land as in this matter) contrary to the provisions of a town planning scheme. A fine of $135,555 was imposed by the magistrate but set aside on appeal by Scott J, who imposed a single fine of $44,300 for the three offences. An appeal and cross appeal from the decision of Scott J were dismissed by the Full Court.
Relevantly, in the earlier matter the court referred to the fact that the land was used for the operation of a business, and the appellant's trust had received rent of more than $200,000 and declared income of $243,068 and $277,211 for the years ended 30 June 1997 and 1998.[8]
[8] Kwa v City of Stirling [2001] WASC 370 [36].
The defence submissions
The appellant relied on written submissions he handed up at the hearing. In response to questions from the magistrate, he repeatedly said that he did not understand.
The sentencing remarks
The learned magistrate gave brief reasons for sentence - and also made several comments in the course of the submissions by the prosecuting counsel.
Her Honour commented that a daily penalty applied to the offence under the Planning and Development Act, and the offence period was 22 November to 30 August, a total of 282 days.[9]
[9] ts 12 ‑ 13.
Her Honour further said:
You got a permit which did not in fact end up being what was built, and then you built what you wanted to build in the first place, one would think, which was contrary to the building permit on the basis that you would go and get it fixed up later...
…there's two other matters that relate to you, and doing exactly the same thing.[10]
…
I don't intend to [impose] a global penalty over both offences; they're different offences, quite separate, and I intend to impose separate offences.
I do need to take into account that you've entered a plea of guilty, and it is not at an early opportunity in my view, although there can be some discount for there not being a trial and the prosecution not having to call their witnesses but it can't be substantial.[11]
…the work that was approved was a significant second-storey development which did not cover all of the original housing, and there was, on the plans submitted, an area that would remain a single-storey.
There was a renovation which related to a library/bedroom to master bedroom, lounge and balcony construction which subsequently turned into in fact four bedrooms, an extended balcony area, library, master bedroom and lounge which was significantly different to what was originally proposed.
The works needed approval. You did get approval but you didn't get approval for what you intended to build, and subsequently continued on in your building works…
The second one is a charge that you did the building work otherwise in accordance with the Building Act which is a lesser charge than the first…[12]
I do, as I say, need to take into account your plea of guilty, the fact that this was not totally contrary to obviously the development of the Floreat area because it has subsequently been approved…[13]
[10] ts 14.
[11] Her Honour did not quantify the discount.
[12] ts 15.
[13] ts 16.
The grounds of appeal
Before dealing with the 10 grounds, I will make some general comments.
General sentencing principles are set out in pt 2 of the Sentencing Act 1995 (WA). A sentence must be commensurate with the seriousness of the offence, taking into account the statutory penalty, the circumstances of its commission, and any aggravating or mitigating factors.[14]
[14] Sentencing Act s 6.
Sections 7 and 8 deal with aggravating and mitigating factors. Relevantly, an offence is not aggravated by the fact that the offender has a criminal record, or a previous sentence has not achieved the purpose for which it was imposed.[15]
[15] Sentencing Act s 7(2).
By s 9 of the Sentencing Act:
(2)If the statutory penalty for an offence is a fine of a particular amount or a particular term of imprisonment, then that penalty is the maximum penalty that may be imposed for that offence and, unless the statutory penalty ‑
(a)is a mandatory penalty; or
(b)includes a minimum penalty,
a lesser penalty of the same kind may be imposed.
…
(7)If the statutory penalty for an offence specifies a daily penalty, that penalty may be imposed for each day or part of a day during which the offence continues, in addition to any other penalty that may be imposed for the offence.
Part 8 of the Sentencing Act provides for fines.
In deciding the amount of a fine, the court must, as far as is practicable, take into account the means of the offender, and the extent to which payment of the fine will burden the offender.[16]
[16] Sentencing Act s 53.
A court sentencing an offender for two or more offences that are founded on the same facts or form part of a series of offences of the same or similar kind may impose a single fine for all of the offences.[17]
[17] Sentencing Act s 54.
In Hunter v City of Joondalup Pritchard J discussed the range of penalties that have been imposed for similar offences against the Planning and Development Act,[18] commenting:
The offences that are able to be committed under s 218 of the Act can occur in a huge variety of circumstances. They can be committed by individuals and by corporations. Even where the offences are committed by individuals, there can be a huge range of circumstances in which the offences are committed, and that makes identification of a range of penalties for offences under the Act somewhat difficult.[19]
[18] Hunter v City of Joondalup [2016] WASC 424 [102] - [107].
[19] Hunter v City of Joondalup [104]. See also Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39 [35]; Paolucci v Town of Cambridge [2013] WASC 50 [99] (Edelman J); Caruso v Shire of Augusta‑Margaret River [2016] WASC 379 [125] ‑ [136] (Fiannaca J).
The magistrate did not impose a daily penalty for a continuing offence. Her Honour did, however, accept that the offence under s 218(a) was a continuing offence for which the appellant was liable for a daily penalty of $25,000. Whether the appellant was liable to a daily penalty is obviously relevant to determining the statutory penalty.
Whether an offence is a continuing offence is a matter of construction of the provision creating the offence.
The prosecution notice alleged the appellant carried out works without having obtained planning approval. It did not plead the allegation that the offence was a continuing offence and the question was not the subject of argument but rather was assumed before her Honour.
Counsel for the respondent was prepared to argue the issue on appeal, the appellant made no relevant submissions. Having regard to the basis on which I have decided this appeal, it is not necessary to further consider the question on this occasion.
The relevant principles
The principles to be applied in an appeal against sentence under pt 2 of the Criminal Appeals Act 2004 (WA) were recently summarised by Corboy J in Horrocks v Discombe.[20] Relevantly to the present appeal:
(1)An appeal court will not intervene to set aside a sentence merely because it might exercise the sentencing discretion in a manner different from the sentencing judge. Rather, an appeal court should only intervene if a material error of fact or law has been made or the result is manifestly unreasonable or unjust.
(2)Section 14(2) of the Criminal Appeals Act applies to sentencing appeals, so that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. In the context of a sentencing appeal this will usually require the sentencing court to consider what the appropriate penalty would have been if no error had been made in exercising the sentencing discretion at first instance.
(3)The error may be express or implied. A plea that a sentence is manifestly excessive is an allegation of implied error.
(4)In determining whether a sentence is manifestly excessive, it is necessary to consider the maximum penalty for the offence, the standard of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies in the scale of seriousness of offences of that kind and the personal circumstances of the offender.
(5)The total sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and having regard to the circumstances of the case, including those referable to the offender personally.
[20] Horrocks v Discombe [2019] WASC 425 [17] - [21].
The grounds of appeal
Grounds 1 and 2
These grounds allege:
The Learned Magistrate erred in fact in imposing separate penalties for each offence when the evidence to support each charge was the same.
Further and in the alternative to ground 1 the learned magistrate erred in imposing two separate penalties when both offences were founded upon the same facts.
Where offences contain common elements, subject to any contrary legislative intent, it is wrong to punish twice for the elements that are common.[21] The appellant relies on s 11 of the Sentencing Act by which:
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.
[21] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40]; Gowan v The State of Western Australia [2016] WASCA 98 [27] ‑ [33].
There is no doubt that both offences arose out of a common substratum of facts. As the appellant submitted, it was common to both offences that the work which the appellant undertook had not been approved by the Council at the time it was done. They were, however, distinct offences. The appellant's submission that it is double punishment to impose a penalty for not having a building licence, when he could not have obtained a building licence without planning approval, is without merit. The planning approval and the building licence are two separate authorisations and each was required.
The appellant also referred to s 54 of the Sentencing Act. It may have been open to the magistrate to impose a single fine under s 54 on the basis that they were part of a series of offences of the same kind, but her Honour was not obliged to do so.
In my opinion, grounds 1 and 2 are not reasonably arguable, and leave should be refused on those grounds.
Ground 3
Ground 3 alleges:
The learned Magistrate erred in fact in finding that the work undertaken by the appellant was not totally contrary to the development of the Floreat area when in fact it was entirely consistent with that development as established by the fact that the appellant subsequently received planning approvals for all work undertaken during the period of the charges.
The appellant submitted that the subsequent council approval for the bedrooms and en-suites and the approval from the State Administrative Tribunal for the balcony shows that the work was entirely consistent with the orderly development of the area.
I am not satisfied that this ground discloses error.
First, the magistrate's sentencing remarks must be read as a whole and with a degree of common sense.
Second, her Honour's comment, in full, was that 'this was not totally contrary to obviously the development of the Floreat area because it has subsequently been approved'.[22] That is, her Honour expressly recognised and referred to the subsequent approval for the works undertaken.
[22] ts 16.
Third, the facts before her Honour were that, as a result of extending the balcony on the Turriff Road side of the dwelling, the development no longer complied with the requirement in the scheme that buildings in the Floreat precinct be set back at least nine metres from the primary street.
I am not satisfied that the error alleged has been established. Leave should be refused on ground 3.
Ground 4
Ground 4 alleges:
The learned magistrate erred in fact in finding that the appellant did not get approval for what he intended to build whereas that was not the respondent's case and it was the appellant's case that he did get approval to construct what he originally intended to build but changed his mind after work commenced.
The magistrate made two comments relevant to this ground. First, in the course of submissions, her Honour said:
You got a permit which did not in fact end up being what was built, and then you built what you wanted to build in the first place, one would think, which was contrary to the building permit on the basis that you would go and get it fixed up later.[23]
[23] ts 14.
Later, in her sentencing remarks, the magistrate said:
The works needed approval. You did get approval but you didn't get approval for what you intended to build, and subsequently continued on in your building works.[24]
[24] ts 15.
The second statement is ambiguous. Read with the earlier comment, however, I am satisfied that her Honour's remarks should be read in the way contended by the appellant. I accept that they are not consistent with the material facts asserted by the prosecutor.
I am not satisfied, however, that the error, of itself, is material. The facts accepted by the appellant were that, for the period alleged in the first charge, he carried on the development without planning approval. And, from 28 February 2018, he continued despite a formal building order requiring him to cease all work. While he applied for approval, he continued without waiting for it to be granted.
I would grant leave on ground 4, but would not uphold the ground as I do not believe that the error could have affected the sentence imposed.
Ground 5
Ground 5 alleges:
The learned magistrate erred in law in finding that the appellant had no right to make an application for retrospective planning approval, when the Planning and Development Act 2005 at all material times permitted the grant of retrospective planning approval.
The ground appears to relate to a comment by her Honour in the course of the prosecutor's submissions.[25] It misreads what her Honour said. She said, correctly, that there was no right to retrospective approval, not that the appellant had no right to apply for such approval.
[25] ts 7.
The ground has no merit and leave will be refused.
Ground 6
Ground 6 alleges:
The learned magistrate erred in law in finding that it was unreasonable for the appellant to change his mind and build a different design to that approved when the appellant's case was that he had in the past been successful in obtaining retrospective building approvals with the Town of Manjimup, Cities of Bassendean, Bayswater and Stirling.
This ground also mischaracterises what the magistrate said. Her Honour referred to whether the appellant had acted under a reasonable belief in proceeding without approval when he knew that he had to get approval for his plans.[26] The ability to obtain retrospective approval does not detract from the obligation to obtain approval before doing the work, or detract from the correctness of her Honour's comment.
[26] ts 7, 14.
I would refuse leave on ground 6.
Ground 7
Ground 7 alleges:
In imposing penalties of $80,000 and $10,000 respectively the learned magistrate erred by failing to give any or any adequate weight to the appellant's age, failing health and lack of means to pay such fines and inability to ever be in a position to earn any or any sufficient income to ever do so.
The appellant was born on 30 May 1935. At the time of the hearing he was just over a week short of his 84th birthday.
In his written submissions to the magistrate, the appellant said his financial circumstances were as follows:
Assets
His only property asset is his family home at I Turriff Road, Floreat, which he owns with his wife. There is a $320,000 mortgage on that property, basically to fund the costs of the recent renovation, and repayments are approximately $1,900 per month, which at the time of the Magistrate's Court hearing had been somewhat in arrears for about 14 months, and remain so. Without the contribution that his wife makes to the mortgage from her modest income as a part time carer, he would not be in a position to pay the monthly mortgage. Other than his 10 year old Toyota car and a 6 year old Toyota car his wife drives, he has no other securities, assets or substantial savings.
Income
He is currently in receipt of an aged pension at approximately $510 per fortnight although it was $620 when the case was heard below. He has retained his engineering practice, however in the past 12 months has been unable to undertake very much engineering and consulting work; and income from the practices has only been about $8,000 [although it was $3,000 to $4,000 when the case was heard below], much of which has been consumed in various costs and expenses in continuing to conduct that practice. He did not see any real prospect of obtaining any further income from the engineering practice, so he intended to shortly retire from that practice. At his age and poor state of health it is now highly unlikely that he will ever be able to gain any paid employment.
The appellant's submissions about his personal circumstances were not challenged.
An offender's personal circumstances should ordinarily be taken into account in determining the appropriate sentence. The Sentencing Act requires a court, in deciding the amount of a fine, as far as is practicable, to take into account the means of the offender, and the extent to which payment of the fine will burden the offender.[27]
[27] Sentencing Act s 53.
The magistrate confirmed with the appellant that he had a mortgage against his family home and that he had no other assets apart from those described in his submissions.[28] Her Honour said nothing further about the appellant's capacity to pay a fine.
[28] ts 12.
In considering this ground, I take into account that it is well settled that an appeal court does not scrutinise the reasons given by magistrates with an eye keenly attuned to the identification of error. Of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts.
I am, however, satisfied, from both the size of the fines imposed and the lack of reference in her Honour's sentencing comments to the appellants means and the extent to which a fine of this size would burden him, that the appellant has established the error alleged. Otherwise, one would expect some explanation for why a total penalty of $90,000 was imposed on the appellant, despite his age, health, and limited ability to earn.
My finding on this ground is material to the consideration of ground 10, and whether the fines imposed are manifestly excessive.
Ground 8
Ground 8 alleges:
The learned magistrate erred in fact in finding that the appellant had done this before, in that although the appellant had prior convictions for breaches of the Planning and Development Act 2005 and the Building Act 2011, the circumstances of those offences were entirely different to the current offences.
It was not disputed that the appellant has previous convictions for breach of legislation imposing planning controls. The magistrate referred to those convictions in the course of saying, correctly, that the appellant knew how to go about getting the required approvals. I am not satisfied, from what the magistrate said, that her Honour wrongly treated the previous convictions as aggravating the current offence. Nor, given the context in which the remark was made, am I satisfied that there was an error in her Honour not expressly having regard to the different factual circumstances of the offences.
Ground 8 is not reasonably arguable and I would refuse leave.
Ground 9
Ground 9 alleges:
The learned magistrate erred in law in determining that the cases called for a deterrent penalty in that there was no established need for general deterrence or, having regard to the appellant's age, state of health, personal deterrence.
Her Honour did not expressly refer to personal or general deterrence, although the amount of the fines is not otherwise explicable.
It is not, in my opinion, wrong to regard deliberate offending of this kind as requiring a penalty that would deter both the offender from repeating the conduct and others from acting in a similar way. In Swan Bay Holdings Pty Ltd v City of Cockburn, Hasluck J observed in relation to penalties for planning offences:
Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also on a pervasive culture of general observance and respect for the underlying communal purpose. This requires that breaches of the law be underpinned by significant penalties in order to deter infringements.[29]
[29] Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 [74]. See also Chen v City of Stirling [2014] WASC 183 [5].
Accepting that deterrence is an important factor in sentencing for offences of this kind, the amount of the fine must be determined having regard to a range of factors, including those set out in s 53 of the Sentencing Act.
Ground 9 discloses no error and I would refuse leave.
Ground 10
Ground 10 alleges:
Having regard to the errors of fact and law set out above the penalties imposed were manifestly excessive.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error, often described as imposing a sentence that falls outside the range of sentences which could have been imposed if proper principles had been applied.[30] It applies to a sentence which is 'unreasonable or plainly unjust' so that the appellate court infers that in some way there has been a failure to properly to exercise the discretion which the law reposes in the court of first instance.
[30] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [26].
An allegation of manifest excess can also, as here, rely on an express error.
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender. Sometimes the court can have regard to the sentences imposed in comparable cases. That is not possible in this case.
Section 53 of the Sentencing Act requires the court, in deciding the amount of the fine, to, as far as is practicable, take into account the means of the offender and the extent to which payment of the fine will burden the offender. The sentence must still be commensurate with the seriousness of the offence.[31] As Hall J said in Hussaini v Szolnoski
In some cases it may be necessary to impose a fine that is difficult for an offender to pay or even beyond the means of an offender, if a fine of any lesser amount would not be commensurate with the seriousness of the offence. This assumes that no other disposition is reasonably open.
However, the seriousness of an offence will rarely dictate the precise amount of an appropriate fine. There will usually be a range of fines that will be open to be imposed. It is in this context that the means of the offender and the extent of any burden on the offender will come into play. Where an offender is of very limited means and the burden of a fine would be very onerous, those factors will justify the imposition of a fine towards the lower end of the range that would be appropriate for an offence of the seriousness being dealt with by the court.[32]
[31] Sentencing Act s 6(1).
[32] Hussaini v Szolnoski [2013] WASC 64; (2013) 227 A Crim R 586 [25] ‑ [26].
I am satisfied that the failure of the sentencing magistrate to have regard to the appellant's personal circumstances, including his age and health, and in particular his means and the extent to which the payment of the fine would be a severe burden, has resulted in a fine that is unreasonable in the circumstances. The error affects both fines when one is seeking to determine a penalty that properly reflects the total criminality involved.
Conclusion
Having determined that the sentencing magistrate has made a material error in the exercise of the sentencing discretion, it is necessary for this court to determine, afresh and for itself, the appropriate sentence, based on:
(a)the material before the magistrate; and
(b)the submissions made by the parties to this court which are relevant and may properly be taken into account.
It is relevant that the appellant pleaded guilty, although late. I also take into account that the development was ultimately approved.
The sentence must also reflect the admitted facts that the appellant continued with the development, after he had been told to stop work. He applied for approval, but kept going before that approval had been given. At the hearing of the appeal, he said, 'I could not stop at that time because once the men is gone, they never come back again. I never finish the job'.[33]
[33] Appeal ts 28.
It follows from the basis on which I would allow the appeal that, in my opinion, the fine should be less than that imposed by the sentencing magistrate - primarily to take account of the appellant's age and means.
Any fine that I impose will be a burden to the appellant, having regard to the evidence of his personal circumstances, but it is necessary to impose a penalty that reflects the seriousness of the offending.
I would, accordingly:
(1)Grant leave on grounds 4, 7 and 10;
(2)Allow the appeal on grounds 7 and 10; and
(3)Set aside the fines imposed on each charge.
I would substitute the following fines for those imposed by the learned magistrate:
(1)on charge no PE 63827/18 a fine of $30,000;
(2)on charge no PE 63828/18 a fine of $5,000.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson12 DECEMBER 2019
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