Nugent v City of Bayswater - [2017] WASC 25

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: NUGENT -v- CITY OF BAYSWATER [2017] WASC 25

CORAM: CORBOY J

HEARD: 22 JUNE, 27 SEPTEMBER & 11 NOVEMBER 2016

DELIVERED : 8 FEBRUARY 2017

FILE NO/S: SJA 1001 of 2016

BETWEEN: MARK ANDREW NUGENT
Appellant
AND
CITY OF BAYSWATER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M M FLYNN
File No  :PE 29823 of 2015, PE 29824 of 2015, PE 29825 of 2015

Catchwords:

Criminal law - Appeal against conviction and sentence - Use of premises in breach of planning approval - Whether the premises used for the purpose of accommodation - Whether convictions should be set aside on new evidence - Whether s 11 of the Sentencing Act 1995 (WA) applied in imposing penalties for the offences committed by the appellant

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 39, s 40
Criminal Procedure Act 2004 (WA), s 55, s 71, s 180
Planning and Development Act 2005 (WA), s 218
Sentencing Act 1995 (WA), s 11, s 53, s 54

Result:

Leave granted to adduce new evidence in the appeal
Leave to appeal on proposed ground of appeal refused
Appellant given leave to amend appeal notice to raise whether s 11 of the Sentencing Act applied
Leave to appeal on amended appeal notice granted
Appeal against penalty allowed and appellant resentenced
Appeal against conviction dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms A M Wood

Solicitors:

Appellant: In person
Respondent: Kott Gunning

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

Basham v City of Joondalup [No 2] [2016] WASC 120
DPJB v The State of Western Australia [2010] WASCA 12
Genovese v City of Perth [2012] WASCA 89
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Perry Properties Pty Ltd v Chief Commissioner of State Revenue (RD) [2010] NSWADTAP 6
Samuels v The State of Western Australia (2005) 30 WAR 473

CORBOY J:

Summary

The appellant was the sole director of Major Hospitality Group Ltd (MHG). The respondent (the City) alleged that MHG had committed offences against the Planning and Development Act 2005 (WA) (the P & D Act).
Section 180 of the Criminal Procedure Act 2004 (WA) provides that, where a corporation commits an offence, an officer of the corporation may also be charged with having committed the offence. Accordingly, the appellant was also charged with having committed offences against the P & D Act. The charges alleged that:
(1)on 27 May 2014 and continuing from that date, at unit 1, 505 Walter Road East, Morley, Western Australia (the Premises), the appellant commenced, continued and carried out development on the Premises (by the use of the Premises for the purpose of accommodation) without obtaining the prior approval of the City as was required by cl 2.2.1 and cl 3.1.1 of the City of Bayswater District Town Planning Scheme No 24 (the Town Planning Scheme), contrary to s 218(a) and s 218(b) of the P & D Act (Charge 1);
(2)on 27 May 2014 and continuing from that date at the Premises, the appellant failed to comply with the conditions of a planning approval DA 12‑0462 (by the use of the Premises for the purpose of accommodation) issued by the City in contravention of cl 2.1.1 and cl 3.2.1 of the Town Planning Scheme, contrary to s 218(a) and s 218(c) of the P & D Act (Charge 2);
(3)prior to 19 February 2015 and continuing from that date at the Premises, the appellant failed to comply with the conditions of a planning approval DA 12‑0462 (by the use of the Premises for the purpose of accommodation) issued by the City in contravention of cl 2.1.1 and cl 3.2.1 of the Town Planning Scheme, contrary to s 218(a) and s 218(c) of the P & D Act (Charge 3).
The appellant did not attend the trial of the charges. He was convicted in his absence pursuant to s 55 of the Criminal Procedure Act. He was fined $15,000 as a global fine for Charges 1 and 2 and a further $1,000 for Charge 3. He was ordered to pay the respondent's costs fixed in the sum of $8,568.30. The City did not proceed with the charges against MHG as a liquidator had been appointed to the company.
The appellant appealed against his conviction. He acted in person in the appeal. The appeal notice was drafted on a misunderstanding as to the charges for which he had been convicted. The appellant assumed that he had been convicted of offences relating to alterations that may have been made to the Premises rather than for contravening restrictions on their use. That misunderstanding was resolved at a directions hearing.
The appellant alleged in his appeal notice that he had not attended the trial as he had been ill and had been unable to notify the court in time. He further alleged that the charges had been determined without 'proper evidence' due to his absence and that fresh evidence had become available. Although the ground proposed in the appeal notice stated that the fresh evidence concerned whether structural alterations had been made to the Premises, the appeal proceeded on the basis that the appellant could present whatever evidence he considered might establish that a miscarriage of justice had occurred.
I have decided that the appellant should be granted leave to adduce further evidence. As will become apparent, the evidence that the appellant presented was not 'fresh' but 'new' evidence.
The ground of appeal proposed by the appellant did not have a reasonable prospect of success, applying the test explained by the Court of Appeal in Samuels v The State of Western Australia (2005) 30 WAR 473, especially at [56]. Leave to appeal on that ground will be refused.
However, I raised two further questions in the appeal as the appellant had been convicted in his absence and was acting in person: did a miscarriage of justice occur for any reason and did the magistrate err when imposing penalties or in awarding costs?
I have concluded that a miscarriage of justice did not occur in the prosecution and conviction of the appellant for the reasons that follow. Accordingly, the appeal against conviction will be dismissed.
However, the respondent rightly conceded that the magistrate erred by not applying s 11 of the Sentencing Act 1995 (WA) in determining the penalties to be imposed for the offences. The appellant will be granted leave to amend his appeal notice and to appeal against penalty on that ground. The appeal will be allowed and a total penalty of $9,725 will imposed for Charge 1. There will no penalty imposed for Charges 2 and 3.
Finally, the respondent made oral and written submissions to the magistrate on the question of costs. Those submissions were reproduced in part in the appeal. I have not found any error by the magistrate in exercising his discretion to fix the costs of the prosecution.

The facts alleged by the City

In summary, the facts as read by the prosecutor alleged that:
(a)MHG was the occupier of the Premises. The Premises had been zoned for light industrial use under the Town Planning Scheme.
(b)MHG applied in mid 2012 to change the use of the Premises to a restaurant, cabaret club/cafe and offices. The application was allowed in part - approval was given for part of the Premises to be used as offices subject to a condition that the rest of the Premises were to remain unoccupied and to be used only as a foyer area for the adjacent offices (the Planning Approval).
(c)Officers of the City inspected the Premises on 27 May 2014. The inspection disclosed that the Premises had been used for habitation. A bed, clothes, wardrobes and various personal items were found in one area; a dissembled bed and numerous articles of clothing were found in another area and laundry facilities, including a functional washing machine, and a bath were found in a third area.
(d)The City directed MHG by a letter dated 10 June 2014 to remove all bedding and other items associated with using the Premises for habitation. The City again wrote to MHG on 11 July 2014 requiring it to cease using the Premises for the purpose of habitation and to return the Premises to their original approved use.
(e)Officers of the City inspected the Premises on 19 February 2015. The Premises had been substantially altered and were still being used for habitable purposes. The appellant stated during the inspection that he had slept at the Premises approximately four nights per week and another person present during the inspection, Mr Bertogna, had admitted that two security guards stayed in the Premises a couple of nights per week. Parts of the Premises had been converted into bedrooms; a meeting room had been converted into a lounge room; a wash area had been converted into a kitchen; a kitchen had been converted into a bathroom/kitchen; multiple items of clothing had been found in the Premises; the wash area and kitchen accommodated fridges and cooking equipment; a shower and personal hygiene products had been located within the kitchen; and mattresses had been placed within a function area.

The magistrate's findings

The magistrate found that MHG had, between 27 May 2014 and 19 February 2015, used the Premises for accommodation purposes contrary to the Planning Approval. Accordingly, his Honour found the appellant, in his capacity as an officer of MHG, guilty of Charges 1 and 2. A global fine was imposed for Charges 1 and 2, comprising a fine of $1,550 and a daily penalty of $50 for 269 days ($13,450).
The prosecutor stated that the City did not seek a daily penalty in relation to Charge 3. In answer to further questions from the magistrate, the prosecutor advised that the City only alleged that the appellant had slept at the Premises on the night before the inspection by the City's officers on 19 February 2015 (ts 10). His Honour found that the appellant had spent 'at least 19 February' 2015 at the Premises (ts 15) - that is, the appellant had spent the night of 18/19 February at the Premises. His Honour further found that the appellant had personally contravened the P & D Act on that date. Accordingly, the appellant was convicted of Charge 3 and fined $1,000.

The further evidence in the appeal

The appellant made three affidavits in the appeal: affidavits made on 6 May 2016 (the First Affidavit), 13 July 2016 (the Second Affidavit) and 13 October 2016 (the Third Affidavit). The appellant also filed and served an affidavit made by Mr Bertogna.
The appellant stated in the First Affidavit that he did not attend the Magistrates Court hearing as he was suffering 'extreme duress and stress as a result of the combined complications and pressures brought upon me by the forced liquidation of my company ... and the fallacious Bayswater Council actions'. He further claimed that the state of his mental health had been such that he had been unable to 'track the process'.
The appellant attached to the First Affidavit a letter written to him by Mr Aldo Roberto, a former director and general manager of MHG. Mr Roberto stated in the letter that any work undertaken at the Premises had been carried out, or directly supervised, by Mr Alberto Pizzino. Mr Roberto described Mr Pizzino as the controller of a company that owned the building (the Property) within which the Premises were located (the Premises were on the upper floor of the Property). Mr Roberto continued:
Major Hospitality did not, nor did any of its staff, live/reside in the upstairs unit as was alleged by the Bayswater Council. It was commercial office space. The only residing person in the entire complex was in fact Mr Pizzino himself who lived in unit 5.
The items of furniture including the beds the couches and other fitments that were in the unit, were introduced from the time we had been developing the space internally to be used for the purpose of a 'cabaret club' - which ultimately was turned down as a 'use' by the Bayswater Council in direct conflict with the guarantees and assurance from the owner, Mr Pizzino, that the site was already zoned and approved for use as a 'nightclub'. All works were only done prior to the orders issued by Council pending zoning applications back in mid 2013. These works were covered back in 2013 by a retrospective application for works which was granted by Council.
The appellant elaborated on his reasons for not attending the trial in the Second Affidavit. Again, he emphasised that his health had suffered as a result of the pressure experienced through the liquidation of his company and he added, 'insofar as seeing a doctor and getting a "medical certificate" I would have been unable to afford this, I am currently under extreme financial hardship'.
The appellant stated in the Second Affidavit that it was never his intention to develop the 'upstairs for residential purposes'. However, he also stated that:
I would stay there on occasions for security reasons or when working late on double shifts. When our company took over the upstairs area the whole place was set up as a bed and breakfast - the owner was trying to get this approved through the Council until we took over - we had to convert the entire east wing into offices - utilising the existing partitioning - so you can imagine there were beds everywhere leaning up against walls etc. The whole place became a storage area outside of the office wing. Some staff would also rest upstairs sometimes between shifts.
The appellant stated in the Third Affidavit that when he had been asked by officers from the City if he had been sleeping at the Premises, he had answered '3 ‑ 4 nights that week, probably 4' due to 'maintenance and security reasons'. He explained that damage had been caused by vandalism and a storm. He annexed photographs that depicted significant damage, principally to what I have inferred was a restaurant located on the ground floor of the Property and which had been operated by MHG. However, the photographs were not dated and the appellant did not state in the Third Affidavit when the damage had been sustained.
The appellant also stated that he had a lease that allowed 'operations' at all times; that he had worked long hours and would need a shower and rest on occasions but that 'to say that I was living there as if it was my home, just isn't true'. His office in the Premises had been used both as an office and as a place of rest and he had been the 'main security' for the Premises. The upstairs part of the Premises had been set up as offices and a cabaret club so that there was 'a green room, a lounge/meeting room, toilets and shower facilities for performers and, as it turned out, also for our restaurant staff to use and to rest on double shifts'. The appellant reiterated that the beds were already at the Premises when MHG commenced its lease as the previous 'owner' had operated a bed and breakfast business.
Mr Bertogna stated that he had been the 'original founder of the Club' for which the Premises had been intended (there were two applications to the City to use the Premises as a club prior to the application by MHG; Mr Bertogna did not state which application(s) he was associated with). It was not in issue that he was present when officers of the City inspected the Premises on 19 February 2015. Mr Bertogna made various allegations about the manner in which the inspection had been conducted. Those allegations were irrelevant to any issue to be determined in the appeal and have been disregarded.
The balance of Mr Bertogna's affidavit concerned items that were located in the Premises and which had been identified by the City as indicating that the Premises had been used for accommodation purposes. Mr Bertogna stated that some items, such as kitchen and wash facilities, had been installed prior to MHG occupying the Premises. Mr Pizzino had left other items, such as mattresses that were located in the foyer area, from a time when the Premises had been used as a bed and breakfast facility. Yet other items, such as a bed in the change room, had been placed in the Premises when it had been proposed to establish a nightclub.
The City filed two affidavits made by Mr Steven De Piazzi, a planning officer of the City. The City also filed an affidavit made by Ms Bianca Sandri who was also a planning officer of the City in February 2015.
Mr De Piazzi provided a history of planning applications that had been made to the City concerning the Premises and the Property. To the extent that those matters were relevant:
(a)In September 1999, the City approved a development application made by R J Morrissey to use the upper floor of the Property as a dance studio.
(b)The City approved an application to vary the location of space for car parking at the Property. The minutes of the council meeting at which the application was approved noted that the upper floor of the Property was vacant and accordingly, there was no approved use applicable to that space.
(c)An application was made to the City in 2002 to use the Premises as a 'club'. The application was refused. A further application to use the Premises as a cabaret club/nightclub was made and refused in 2008.
(d)MHG applied for approval to use the Premises for offices, restaurant, cabaret club and associated alterations. The Planning Approval was granted for a change of use to office for a part of the Premises with the balance of the Premises to remain unoccupied other than for use as a foyer area for the approved offices.
Mr De Piazzi further stated that he had searched the City's records and had been unable to locate any planning application for the Premises to be used as a bed and breakfast facility. He was not aware of any approved change of use between the City's approval for the Premises to be used as a dance studio and as offices.
Mr De Piazzi stated in his second affidavit that he had attended the inspection of the Premises on 19 February 2015. MHG had been informed of the intended inspection by a notice dated 13 February 2015. The officers of the City who had undertaken the inspection made a file note recording what had occurred. A copy of the note was attached to Mr De Piazzi's affidavit.
Ms Sandri was also present at the inspection of the Premises. A copy of the same file note that formed part of Mr De Piazzi's second affidavit was attached to her affidavit.
It was apparent from its contents that the file note formed the basis for the facts alleged by the City at the hearing of the charges against the appellant. As with Mr Bertogna's affidavit, I have disregarded those parts of the file note that concerned matters that occurred during the inspection that were irrelevant to the issues to be determined in the appeal.
The file note stated that Mr Bertogna had advised that security guards stayed overnight at the Premises 'a couple of nights a week' as the Property, including the Premises, had been broken into on several occasions. The note also stated that the appellant had said that he was sleeping at the Premises approximately four nights a week.
The appellant and Mr Bertogna did not actually describe the business conducted by MHG at the Premises in their affidavits. They only referred incidentally to business activities that were conducted at the Property - in particular, there were references to a restaurant and to persons working double or late shifts. Mr De Piazzi attached to his first affidavit a copy of an extract from the minutes of a meeting of the City's council held on 25 September 2012. The extract concerned the application by MHG to use the Premises as a cabaret club, cafe and offices. It is apparent from the minutes that the Property comprised a commercial unit development and that the Premises were on the upper floor of the development. It was also apparent that there was a fast food outlet and a restaurant located in two of the units below the Premises. The file note attached to the affidavits of Mr De Piazzi and Ms Sandri recorded the appellant as having advised that the business of MHG consisted of operating a restaurant - presumably, from the ground floor of the Property.

The minutes recorded the history of planning applications made to the City in relation to the Premises. As has been mentioned, there was no reference to an application to use the Premises as a bed and breakfast facility. The minutes further stated that it was proposed that the offices would be operated between 8.00 am and 6.00 pm, Monday to Friday, and recorded the resolution passed by the City's council authorising the use of part of the Premises for offices.
The resolution granted planning approval for a change of use to office for a designated part of the Premises as depicted on a plan forming part of the planning application. The change in use was subject to conditions, including that 'the remainder of the upper floor tenancy is not to be used for any other use and is to remain unoccupied other than for use as a foyer area for the adjacent offices'. The minutes included floor plans for the Premises showing the proposed location of the offices and other rooms that were referred to in Mr Bertogna's affidavit and the City's file note of the inspection of the Premises conducted on 19 February 2015 - for example, 'change room/green room', 'meeting room' and 'wash area'.

The P & D Act and the Town Planning Scheme

Section 218 of the P & D Act provides that:
A person who -
(a)contravenes the provisions of a planning scheme; or
(b)commences, continues or carries out any development in any part of a region the subject of a region planning scheme or any part of an area the subject of a local planning scheme or improvement scheme otherwise than in accordance with the provisions of the planning scheme; or
(c)commences, continues or carries out any such development which is required to comply with a planning scheme otherwise than in accordance with any condition imposed under this Act or the scheme with respect to the development, or otherwise fails to comply with any such condition,
commits an offence.
The term 'development' is defined by s 4 of the P & D Act to mean the development or use of any land.
Clause 2.2.1 of the Town Planning Scheme provides that:
No person shall depart from or permit or suffer any departure from the requirements and provisions of the Scheme, nor shall any person use or suffer or permit the use of any land or building or undertake or suffer or permit the undertaking of any development within the Scheme Area:
a)otherwise than in accordance with the provisions of the Scheme;
b)unless all approvals required by the Scheme have been granted and issued;
c)unless all conditions imposed upon the grant and issue of any approval required by the Scheme have been and continue to be complied with; and
d)unless all standards laid down and all requirements prescribed by the Scheme or determined by the Council pursuant to the Scheme with respect to that building or the use of that part have been and continue to be complied with.
Clause 3.1.1 has been deleted from the Town Planning Scheme. However, at the relevant time it provided that:
In order to give full effect to the provisions and objectives of this Scheme, all development, including a change in the use of land, except as otherwise provided, requires the prior approval of the Council in each case. Accordingly, no person shall commence or carry out any development, including a change in the use of any land, without first having applied for and obtained the planning approval of the Council pursuant to the provisions of this Part.
Clause 3.1.2 provided for certain developments that did not require planning approval from the City's council. Those provisions did not apply to the alleged non‑approved use of the Premises for accommodation.

Conviction in the absence of a party

Section 55 of the Criminal Procedure Act provides that:
(1)This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea.
(2)If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused's absence if the accused does not appear on that date, the court may -
(a)adjourn the charge; or
(b)hear and determine the charge in the accused's absence.
…
(4)If under subsection (2) … the court decides to hear and determine the charge in the accused's absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court -
…
(b)may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.
(5)If under subsection (4) the court convicts the accused -
(a)the prosecutor must state aloud to the court the material facts of the charge; and
(b)section 129(4) applies; and
(c)in the absence of evidence to the contrary, the court must take as proved any facts so stated.
Division 7, pt 3 of the Criminal Procedure Act provides a procedure for setting aside a decision made in the absence of a party (the Pt 3 Procedure). Section 71(2) states that:
If in an accused's absence a court convicts the accused of a charge, the accused may apply to the court for an order that sets aside the decision and orders the charge to be dealt with again on the grounds that the accused -
(a)did not receive notice of the court date on which the conviction occurred; or
(b)did not receive such notice in enough time to enable the accused to appear on the court date; or
(c)received such notice in enough time to enable the accused to appear on the court date but did not appear for some good reason.
Section 71(5) further provides that the court must refuse an application under s 71 if the application is made after an appeal against the relevant decision has been commenced under the Criminal Procedure Act. Section 72 provides the procedure by which an application to set aside a decision made in the absence of a party is to be determined.
An accused person who has been convicted in his or her absence will ordinarily pursue the Pt 3 Procedure. The conviction will be set aside and a trial ordered if the application under s 71 is successful. However, s 71(5) expressly contemplates that an appeal against a conviction pursuant to s 55 of the Criminal Procedure Act may be commenced without invoking the Pt 3 Procedure.

The relevant principles

It is apparent from s 71(5) that an appellant who chooses to appeal from a conviction recorded in his or her absence rather than to invoke the Pt 3 Procedure is not required to prove any of the matters set out in s 71(1). Rather, the appeal proceeds according to the provisions of pt 2 of the Criminal Appeals Act 2004 (WA).
That does not mean that the provisions of the Criminal Procedure Act are irrelevant to the appeal. The appellant is required to establish one or more of the grounds of appeal identified in s 8(1) of the Criminal Appeals Act where the facts stated by the prosecutor at the time of the appellant's conviction are to be taken as having been proven. Moreover, an appellant's explanation for why he or she did not attend the trial may be relevant to determining whether there was a miscarriage of justice.
That approach is consistent with s 39 of the Criminal Appeals Act. That section provides that, subject to s 40, an appeal court must decide an appeal on the evidence and material that was before the lower court. Section 40(1) permits the appellate court to admit evidence in an appeal.
Leave to adduce further evidence in an appeal is required. The appellant will be granted leave to adduce the evidence contained in the First, Second and Third Affidavits. The City will also be given leave to adduce the evidence contained in Mr De Piazzi's affidavits and the affidavit of Ms Sandri.
The evidence on which the appellant sought to rely in the appeal was new, not fresh, evidence. An appeal court will not allow an appeal against conviction on the basis of new evidence unless the evidence establishes that the appellant is innocent or it raises such a doubt that the court is satisfied that the appellant should not have been convicted: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12; Genovese v City of Perth [2012] WASCA 89.
In DPJB, Owen JA explained that:
Evidence is considered to be 'fresh' if it did not exist at the time of the trial or if it could not have then been discovered with reasonable diligence: Beamish v The Queen [2005] WASCA 62 [9]; Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 [411]. Evidence will merely be 'new' if it was available at the trial or could, with reasonable diligence, then have been discovered: Ratten v The Queen (1974) 131 CLR 510, 517; Urbano v The State of Western Australia [2006] WASCA 147 [9].
The court has traditionally treated appeals based on the admission of fresh evidence differently from appeals based on the admission of new evidence. The reason is that an appeal based on fresh evidence is founded upon a different basis of appellate review from one based merely on new evidence. The rationale for allowing an appeal based on fresh evidence is that the absence of the evidence from the trial was, in effect, a miscarriage of justice: Beamish [10]; Mickelberg v The Queen (1989) 167 CLR 259, 301; Gallagher v The Queen (1986) 160 CLR 392, 395, 402 and 410. Conversely, the absence of new evidence from the trial does not, of itself, constitute a miscarriage of justice: Mickelberg (1989), 301. …
As a result, an appeal based on new evidence necessarily falls into the category of cases which call upon the court's general power to set aside a conviction on the grounds that, in all the circumstances of the case, there was a miscarriage of justice.
…
Where the evidence is fresh, in order to allow the appeal the court need only be satisfied that in the light of all the admissible evidence (including the evidence at trial) there is a significant possibility that a jury, acting reasonably, would have acquitted the accused: Rinaldi [82]; de La Espriella-Velasco [157]; Beamish [14]; Mickelberg (2004) [416]; Mickelberg (1989), 275.
An appellant faces a higher hurdle in overturning a jury's verdict on the basis of new evidence. It is not enough merely to show an increased chance of acquittal. For the appeal to succeed, the new evidence must be strong enough to show that the appellant is innocent or raise such a doubt that the court concludes that the appellant should not have been convicted [61] ‑ [64].
Consequently, a person who is convicted of a criminal offence under s 55 of the Criminal Procedure Act, and who chooses to appeal rather than to invoke the Pt 3 Procedure, is not required to satisfy the requirements of pt 3. However, the evidence on which the appellant was convicted will be the facts that were read to the court of summary jurisdiction and the principles relating to fresh and new evidence will apply in the appeal.

Disposition - conviction

The gist of the charges alleged by the City was that MHG and the appellant had used the Premises for the purpose of accommodation contrary to the Planning Approval. The Planning Approval contained a positive and negative stipulation - part of the Premises could be used as offices but on the condition that the remaining part was not occupied and was only used as a foyer area. Any use of the Premises other than as offices and a foyer area contravened the Planning Approval. Consequently, the expression 'the use of the Premises for the purpose of accommodation' was a particular of each charge that identified the way in which it was alleged that the offences had been committed. The expression described the alleged contravening use of the Premises. It should not be narrowly construed in that context. In particular, the word 'use' carries its ordinary meaning in each charge rather than any technical meaning derived from planning law and the word 'accommodation' should be broadly interpreted.
The Shorter Oxford English Dictionary defines the word 'accommodation' to include 'room and provision for the reception of people, lodgings; living premises' and the word 'accommodate' to include 'provide lodging or room for; allow space or time for'. The online version of the Oxford English Dictionary defines the word 'accommodation' as including 'room and provision for the reception of people, esp. with regard to sleeping, seating, or entertainment; living premises, lodgings'.
In Perry Properties Pty Ltd v Chief Commissioner of State Revenue (RD) [2010] NSWADTAP 6, the New South Wales Administrative Decisions Tribunal accepted, by reference to the definition appearing in the Compact Oxford Dictionary Online, that the word 'accommodation' means 'a place to stay or live' or 'a room, building or space where someone may live or stay'. That definition captures the use of the word in everyday contexts such as 'temporary accommodation' and 'overnight accommodation'. I accept that the use of the word 'accommodation' is not confined to describing a place where a person lives; the word also applies to a place where a person has stayed. Consequently, the word is not confined to describing a person's residence or where they might ordinarily live.
As the expression 'overnight accommodation' denotes, a person may use a space as accommodation for a short period. Conversely, it cannot be said that a person has stayed in a place merely because they had rested in the place for a short time. In this matter, it could not be found that the Premises had been used for the purpose of accommodation merely because staff had rested on a bed located in the Premises for a short time before returning to work another shift (although the use of the Premises for the purpose of providing rest facilities for staff working in other parts of Property would constitute a breach of the Planning Approval).
What constitutes 'accommodation' and whether a person used premises for the purpose of accommodation are questions of fact. The circumstances relevant to those questions in this matter included that:
(a)The Premises were fitted out in such a way that they could be used for accommodation. In part, the fit‑out included fixtures, such as washing and laundry facilities, that were originally installed by the building owner but which were, at least in part, replaced by MHG. However, there were other items, such as beds and mattresses, which could have been easily moved in and out of the Premises.
(b)The evidence did not establish the date on which MHG entered into a lease of the Premises. However, it must have been no later than June 2012 as the application for planning approval was submitted by MHG to the City on 25 June 2012. The City inspected the Premises in May 2014 and February 2015.
(c)The equipment and facilities that were identified by the City as indicating that the Premises had been used for accommodation purposes were said to have been installed by either the building owner, prior to MHG occupying the Premises, and/or by MHG in anticipation of obtaining approval to use the Premises as a cabaret club/cafe. Consequently, equipment and items such as bedding and mattresses had been located in the Premises for some time prior to the inspections by the City and had remained there long after the City had granted the Planning Approval.
(d)The mattresses that were located in the foyer area were said by Mr Bertogna to belong to Mr Pizzino. No explanation was provided as to why they had remained in the area after the Planning Approval had been granted, other than that Mr Pizzino had said that he had no room to store them. There was also no explanation provided for why MHG had not removed those items that did not form part of the offices, or a foyer for the offices, following the inspection in May 2014 - that is, why it had not complied with the notices issued by the City after the inspection. It would have been expected that moveable items such as beds and mattresses would have been removed from the Premises shortly after the inspection if they were not being used by MHG but were, for example, being stored for Mr Pizzino.
(e)The items observed by the City's officers included clothing, toiletries and other personal items. The inference is that those items were present because people were staying overnight in the Premises.
The facts read by the prosecutor to the court included that the appellant had admitted to sleeping at the Premises four nights a week and that Mr Bertogna had advised that security guards had also slept at the Premises on occasions. The appellant stated in the Second Affidavit that he would 'stay there on occasions for security reasons or when working late on double shifts'. Similarly, the appellant submitted at a directions hearing in the appeal that:
On the actual day that the council came in, there was actually some power tools in operation, and I think they took it upon themselves to think that we were actually constructing something on that particular day. We were fixing up a door that had been broken into downstairs. When I did stay at the premises, it was a lot to do with security reasons (indistinct) double shift, and maybe I had a couple of glasses of wine after the - at the end of the shift (indistinct) drive home, I would stay and reside. We had staff members - if we did a double shift or was had a function on, some of them - because of a lot of them were backpackers - at time that we had - would rest upstairs, the chef in particular. So it was a bit of that upstairs/downstairs going on there, just between shifts (22 June 2016, ts 7).
The appellant stated in the Third Affidavit that he had advised the City's officers that he had slept at the Premises three or four nights a week because of storm damage and vandalism. As has been noted, he did not state when the storm damage had been sustained but the reference to vandalism and security concerns suggests that the appellant had routinely stayed overnight at the Premises.
Mr Bertogna made his affidavit in response to the affidavits made by Mr De Piazzi and Ms Sandri. He sought to explain a number of the matters that were recorded in the file note attached to their affidavits. He stated that the bed in the manager's office was used by the manager to 'rest' on late shifts; the bed in the 'change room/green room' was used by restaurant staff to rest and had not been converted into a bedroom; shower, toilet and kitchen facilities had been installed prior to MHG occupying the Premises; and the 'wardrobe' was used as a storage cupboard. However, neither he nor the appellant provided any explanation for why 'multiple' items of clothing were located in various rooms in the Premises and why personal hygiene products were found in a shower area.
Mr Bertogna denied stating that security guards stayed at the Premises a 'couple of nights a week'. According to Mr Bertogna, he had 'mentioned that occasionally someone may stay for security if needed - NOT LIVE but stay there overnight'. He added that '[t]he Lease allows 24 hour use of the premises so this is no issue and should not be used to "imply" anything further to support this unjust case'; that the appellant worked very late on many occasions but he did not 'live there' and did not utilise the Premises as his residence; and that it would 'be logical and reasonable for [the appellant] to rest before driving home after a late night work session'.
The reason why the appellant or others may have stayed overnight at the Premises is irrelevant to the question whether the Premises were used for purpose of accommodation. Further, the evidence given by the appellant and Mr Bertogna wrongly assumed that the Premises could only have been used for accommodation purposes if someone had lived at the Premises; that is, that the Premises had been used for residential purposes. The statements made by the appellant and Mr Bertogna were admissions that the Premises had been used for purposes other than as offices and a foyer and in particular, that they had been used for the purpose of accommodation - that is, the Premises had been used as a place in which the appellant and others could stay overnight utilising the facilities that were located in the Premises.

Two further matters should be noted. First, there were inconsistencies in the evidence presented by the appellant about how the equipment, facilities and other items observed by the City's officers came to be at the Premises - for example, the statements made by Mr Roberto in his letter may be contrasted with the appellant's statements in the Second Affidavit. Second, the evidence established that MHG and the appellant had not taken steps to remove the items identified by the City's officers following the inspection on 27 May 2014 or to comply with the notices sent immediately following that inspection. Further, the effect of the evidence was that the appellant and security guards had been staying overnight in the Premises during the period alleged in Charges 1 and 2.
In my view, the new evidence presented by the appellant does not establish that he was innocent of any of the offences for which he was convicted or that the evidence raises such a doubt that it can be concluded that he should not have been convicted of the charges alleged by the City.

Disposition - penalty and costs

Section 11 of the Sentencing Act 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.
The offences alleged by each charge involved essentially the same conduct - using the Premises for accommodation purposes in breach of the Planning Approval. The dates between which the offences alleged by Charges 1 and 2 were committed were identical. Those dates included the night of 18/19 February 2015, the night on which the appellant committed the offence alleged by Charge 3. Consequently, the same evidence was necessary to prove each offence - evidence of the Planning Approval and the use of the Premises, including the use of the Premises on the night of 18/19 February 2015. The magistrate ought to have applied s 11 of the Sentencing Act in sentencing the appellant (it should be noted that this was the position taken by the respondent before the magistrate and in the appeal).
The magistrate imposed a 'global' fine for the offences alleged by Charges 1 and 2. A global fine may be imposed under s 54(1) of the Sentencing Act where two or more offences are founded on the same facts or form, or are part of, a series of offences of the same or a similar kind. However, it is not clear whether that approach was adopted to give effect to the requirements of s 11 or whether the amount of the 'global' fine reflected what may have been regarded by the magistrate as an aggravating circumstance - the fact that two offences had been committed.
In my view, it is appropriate in the circumstances to set aside the fines imposed by the magistrate for each offence and to impose a new penalty. That penalty will be imposed on Charge 1 with no penalty to be imposed on Charges 2 and 3 having regard to s 11 of the Sentencing Act.
As was noted earlier, the respondent provided the magistrate with submissions on the question of costs. It is apparent that his Honour had regard to those submissions and I do not consider that he erred in exercising his discretion to fix the amount of costs to be awarded to the respondent. However, his Honour did not consider any issue of proportionality between the total fines imposed and the criminality of the appellant's conduct: see Basham v City of Joondalup [No 2] [2016] WASC 120 [83] and following.
The maximum penalty for an offence against s 218 of the P & D Act is $200,000 and a daily penalty of up to $25,000 per day. General deterrence is a significant factor in sentencing for planning offences. Further, the fact that MHG and the appellant took no steps to comply with the directions issued by the City after the inspection on 27 May 2014 is an aggravating factor. However, the breach of the Planning Approval did not adversely affect the amenity of others and there is no evidence that MHG or the appellant obtained a direct financial benefit from the contravening use of the Premises. The conduct of MHG and the appellant was towards the lower end of the scale of seriousness for this type of planning offence. The fact that it was prolonged will be reflected in a daily penalty to be imposed. I would fine the appellant $1,500 on Charge 1.
I consider that it is appropriate that a daily penalty be imposed. The penalty should be calculated by reference to the date of the first inspection and the timing of the first letter sent by the City following that inspection (10 June 2014). An allowance should be made for the time that MHG might reasonably have required to make whatever arrangements were necessary to cease using the Premises for accommodation purposes. The penalty imposed by the magistrate was for 269 days commencing on 27 May 2014. I would calculate the daily penalty over 235 days (effectively commencing the daily penalty from the start of July 2014).
The amount of the daily penalty should take into account the seriousness of the continuing offence, the requirement that the total 'financial burden' on the appellant imposed by the fine, daily penalty and costs should reflect the criminality of the appellant's conduct and the appellant's means to pay (s 53 of the Sentencing Act). There was little evidence regarding the last of those matters but I infer that the appellant's financial position will have been significantly affected by the liquidation of MHG. That is consistent with the statement made in the Second Affidavit that he was under 'extreme financial hardship'. The evidence indicated that the appellant was fully engaged in the business operated by the company. I would fix the daily penalty at $35 per day having regard to all of those matters.
The appellant will be fined $1,500 on Charge 1 and a daily penalty of $35 per day for 235 days will be imposed. The total daily penalty imposed will be $8,225 and the total penalty will be $9,725. There will no penalty imposed for Charges 2 and 3. The order for costs fixed in the sum of $8,568.30 will not be disturbed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: NUGENT -v- CITY OF BAYSWATER [2017] WASC 25 (S)