O'Malley v Shire of Northam
[2020] WASC 429
•26 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: O'MALLEY -v- SHIRE OF NORTHAM [2020] WASC 429
CORAM: SMITH J
HEARD: ON THE PAPERS & BY WRITTEN SUBMISSIONS FILED 2 OCTOBER 2020 AND 6 OCTOBER 2020
DELIVERED : 26 NOVEMBER 2020
FILE NO/S: SJA 1155 of 2019
BETWEEN: SHAYNE O'MALLEY
Appellant
AND
SHIRE OF NORTHAM
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D M WEBB
File Number : NO 1542 of 2018
Catchwords:
Criminal law - Appeal against conviction and sentence - Conflict of interest - Whether interest as a councillor of a local government authority incompatible with role of defence counsel appearing for a defendant in a prosecution instituted by the local government authority - Local government - Functions and duties of a councillor - Whether apprehended bias arose - Whether a miscarriage of justice established - Turns on own facts
Criminal law - Appeal against conviction - Where conviction entered following plea of guilty - Where appellant submits that he should have been allowed to change his plea - Whether miscarriage of justice would result from maintaining judgment of conviction
Criminal law - Appeal against sentence - Planning and development - Fine for breach of planning scheme - Use of land for storage purposes - Not a permitted use - Whether sentence is manifestly excessive
Legislation:
Local Government Act 1995 (WA), s 3.31, s 3.39
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 79, pt 10, sch 2
Planning and Development Act 2005 (WA), s 87(4), s 218(a), s 223, s 257B
Sentencing Act 1995 (WA), s 6(1), s 6(2)
Result:
Leave to appeal refused
Appeal dismissed
No order as to costs
Category: A
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | McLeods Barristers & Solicitors |
Case(s) referred to in decision(s):
Austrend Construction Pty Ltd v City of Swan [2017] WASC 67
Beydoun v City of Stirling [2015] WASC 25
Callan v City of Fremantle [2008] WASC 197
Caruso v Shire of Augusta - Margaret River [2016] WASC 379
DKN v The State of Western Australia [2018] WASCA 87
Grimwade v Meagher [1995] 1 VR 446
Hunter v City of Joondalup [2016] WASC 424
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Ismail-Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379
Krencej v The State of Western Australia [2019] WASCA 82
R v Szabo [2000] QCA 194; [2001] 2 Qd R 214
Vella v The State of Western Australia [2006] WASCA 129
ZHA v The State of Western Australia [2020] WASCA 101
Table of Contents
1.0 Introduction
1.1 The conflict of interest issue and the submissions sought by the court
1.2 The appeal and the result
2.0 Background
2.1 Procedural history prior to the appellant entering a plea of guilty to the charge on 14 August 2019
2.2. The plea of guilty entered on 14 August 2019
2.3 The magistrate's sentencing remarks
3.0 Ground 1 ‑ Does a miscarriage of justice arise in the conduct of the case put before the magistrate?
3.1 Could a defence have been put before the magistrate on the basis that the photographic evidence of the materials on the appellant's property was illegally obtained?
3.2 Was the appellant denied the opportunity to change his plea to not guilty (and did he have grounds for a change of plea)?
3.3 Has it been established that there was a real and sensible risk that the appellant would not have been given objective advice and representation by his counsel?
4.0 Ground 2 ‑ Appeal against sentence ‑ manifest excess
4.1 General Principles
4.2 General principles applying to sentencing for planning offences
4.3 Is error established?
5.0 The orders that should be made to dispose of the appeal
SMITH J:
1.0 Introduction
1.1 The conflict of interest issue and the submissions sought by the court
The appellant seeks leave to appeal against conviction and sentence, out of time, for an offence of contravening a planning scheme, contrary to s 218(a) of the Planning and Development Act 2005 (WA) (Planning Act). It was agreed by the parties to the appeal that the application for leave to appeal and the appeal be determined by the court on the papers. An order to this effect was made on 17 July 2020.
In the papers filed by the appellant, the appellant raised an issue that in the proceedings before Magistrate Webb on 14 August 2019, and 1 October 2019: (a) he was represented by counsel, Mr A,[1] who is also an elected member (a councillor) of the Shire of Northam (the respondent); (b) the fact that Mr A was a councillor was not known to her Honour when her Honour entered a conviction against the appellant for the offence, imposed a fine and made an order that he pay the respondent's costs; and (c) Mr A should have disclosed certain information to him.
[1] The name of Mr A has been anonymised in these reasons.
As a consequence of the appellant raising this issue, the court made enquiries with the parties, on 24 July 2020, as follows:
(a)The appellant was requested to inform the court, within 14 days, that if it is established that his counsel was, at the time he acted for the appellant, a councillor of the respondent: (i) when the appellant became aware of that fact; and (ii) what information his counsel should have disclosed to him. The appellant was informed that in responding to the request for this information he should not refer to the legal advice given to him by his counsel and that it may be necessary for him to file a supplementary affidavit.
(b)The respondent's legal representatives were asked whether the appellant's counsel is in fact an elected member of the respondent and whether he was an elected member of the respondent when he acted for and provided advice to the appellant. The court also sought written submissions on the issue, that if the appellant's legal representative was an elected member of the respondent when he acted for the appellant:
(i)whether it would be open for the court in the appeal to find that the conduct of counsel deprived the appellant of a fair hearing according to law, which gave rise to a miscarriage of justice, without regard to whether in fact counsel's conduct might have affected the outcome (process miscarriage of justice); and
(ii)whether it would be open to the court in the appeal to find that the conduct of counsel was such that he had a conflict of interest in acting for the appellant while he was an officer of the prosecutor (as an elected member of the respondent), which conflict may have given rise to a real and sensible risk that the plea put on behalf of the appellant would not be fair, and gave rise to a concern for the integrity of the judicial process and the due administration of justice.
The respondent's legal representatives informed the court on 29 July 2020 that the appellant's counsel was a councillor of the respondent when he represented the appellant and that he remains a councillor of the respondent. The respondent's legal representatives subsequently sought to provide written submissions on the issues raised by the court after the appellant had responded to the court's request for further information.
The appellant did not respond to the request for information by the court. However, the appellant did provide some further written submissions by emails sent to the court on 6 October 2020. These submissions substantially went to the issues he raises in the appeal as to whether the officers of the respondent have the power to enter his land without permission and matters going to the intended use of the material, the subject of the offence.
The respondent filed, on 2 October 2020, its supplementary written submissions in respect of the issues raised by the court.
1.2 The appeal and the result
The offence for which the appellant was convicted is that on and between 29 April 2018 and 23 July 2018, at Wundowie, he used land, in the Northam Local Planning Scheme No 6 (the Scheme) area, without having obtained the development approval of the local government, under pt 8 of sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (the Regulations), thereby contravening the Scheme, contrary to s 218(a) of the Planning Act.
On 14 August 2019, in the Northam Magistrates Court before Magistrate Webb, the appellant entered a plea of guilty to the offence of contravening the provisions of a planning scheme.
On 1 October 2019, a conviction was entered for the offence by Magistrate Webb and the appellant was fined an amount of $15,000 and ordered to pay the respondent's costs of $5,000.
Although the particulars of the offence are not stated on the prosecution notice, the particulars of the offence were that the appellant used land within the Scheme area for the storage of materials without development approval. Consequently, the gravamen of the offence for which the appellant was convicted, is storage of materials.
Pursuant to cl 2 of sch 1 of the Scheme, 'storage' is defined in the scheme to mean premises used for the storage of goods, equipment, plant or materials. Pursuant to cl 4.3 of the Scheme, the use of land in a rural zone for storage is not permitted unless the respondent has exercised its discretion by granting planning approval after giving special notice (by advertising an application to commence a use in the manner prescribed by cl 9.4.3 of the Scheme).
The appellant raises three matters in his notice of appeal filed on 2 December 2019, and in affidavits sworn by the appellant on 2 December 2019 and on 11 February 2020. These matters are capable of being articulated as raising the following grounds of appeal:
(1)A miscarriage of justice arose (Ground 1):
(a)as a result of the appellant being represented by counsel who was also a councillor of the respondent at the time counsel represented the appellant, who gave him advice to plead guilty to the charge, and he relied upon that advice even though he was hesitant to do so, in circumstances where his counsel should not have acted for him. (This ground raises an issue of apprehended bias alleged on the basis that counsel had an interest that was incompatible with his role as defence counsel);
(b)because the respondent's evidence as to the use of the land by the appellant was evidence illegally obtained by the respondent, in that, officers of the respondent had and have no power to enter the appellant's property without his permission; and
(c)because the appellant was denied the opportunity to change his plea to not guilty.
(2)The penalty imposed for the offence was manifestly excessive (Ground 2).
Leave of the court is required for each ground of appeal.[2] Leave to appeal must not be given on a ground unless the court is satisfied that it has a reasonable prospect of succeeding.[3]
[2] Criminal Appeals Act 2004 (WA) s 9(1).
[3] Criminal Appeals Act 2004 (WA) s 9(2).
The appellant has not explained the reason why he delayed in filing the appeal. However, it appears from the respondent's submissions that the respondent does not oppose an order being made that the appellant be granted an extension of time in which to file his application for leave to appeal.
2.0 Background
2.1 Procedural history prior to the appellant entering a plea of guilty to the charge on 14 August 2019
The appellant appeared on the first return date of the prosecution notice, namely, 3 September 2018, and pleaded guilty by an endorsed plea. When he appeared he informed the presiding magistrate that he had been advised to retract his plea of guilty and to seek legal advice. The matter was then adjourned until 15 October 2018.
On 15 October 2018, the appellant appeared and entered a not guilty plea. An order was made requiring the respondent to provide disclosure to the appellant by 23 November 2018, and the matter was adjourned until 3 December 2018.
On 3 December 2018, the appellant appeared and orders were made that the respondent provide witness statements to the appellant as soon as possible.
On 12 March 2019, the appellant appeared for the first time before Magistrate Webb. By this time, full disclosure had been given to the appellant by the respondent. However, the appellant had not sought legal advice.
The appellant did not deny that building materials were on his property but informed her Honour that in his view he was not storing materials. When her Honour asked the appellant whether he had removed the materials, the appellant informed her Honour that he had purchased building materials obtained from demolitions and intended to use the building materials on his property. He also stated that he had never been requested by the respondent to remove the material. He also raised the issue of whether the officers of the respondent had the power to enter his land without his permission. Her Honour informed the appellant that he should seek legal advice.
At the conclusion of the hearing on 12 March 2019, the following exchange occurred between her Honour and the prosecutor for the respondent, Mr Gillett, about who might be available to provide legal advice to the appellant:
HER HONOUR: … And work out, find a lawyer to talk to. There are other lawyers, aren't there, Mr Gillett, that do tend to specialised in in councils and shire work, don't they?
GILLETT, MR: There are, your Honour. Again, perhaps I will get some - I will talk to Mr O'Malley outside court, if he's happy to speak to me, get some details. I can give him - I may be able to give him some names of some lawyers. I know there's the lawyer who was in here earlier today.
HER HONOUR: Mr [A]?
GILLETT, MR: Mr [A] has had some involvement with a number of council matters that I have dealt with in this court.
HER HONOUR: Okay. Well that could be helpful, Mr O'Malley - - -
GILLETT, MR: Because he's our here.
HER HONOUR: - - - because he's local. He's local. All right. Because it is - I do know that there are some lawyers that have experience with this type of work, and it's better off seeing them. Mr [A] is here in town, he's local. If he has had experience with it, he's also got experience with criminal law, that might be a good situation for you. I'm not recommending him.
ACCUSED: No. No, that's - - -
HER HONOUR: I'm just trying to work out who's available. So if Mr Gillett is aware that he has had experience with this type of work it might be worth speaking to him.
ACCUSED: No worries. Thank you.
2.2. The plea of guilty entered on 14 August 2019
On 14 August 2019, Mr A appeared on behalf of the appellant and informed Magistrate Webb that there was a change of plea. Her Honour read the charge to the appellant, asked him whether he understood the charge to which he answered 'yes', and asked him whether his plea was guilty or not guilty. In response, the appellant stated 'guilty'.
Mr Gillett, counsel for the respondent, stated the following material facts to the court:
(1)The appellant's land comprises approximately 7 1/2 ha of land that is zoned rural under the Scheme.
(2)On 29 April 2018, a fire occurred on the appellant's property. Officers of the respondent attended the appellant's property and observed that a large amount of building waste (demolition materials) was being stored on the property, some of which was on fire. The materials included bricks, paving, broken concrete, steel cladding, roof timbers, plumbing materials, air‑conditioning ducting, carpet and other assorted building waste.
(3)When spoken to by an officer of the Department of Water and Environmental Regulation about the materials, the appellant informed the officer that:
(a)he worked for a demolition company, which was involved in demolition works within, and outside, the metropolitan region;
(b)when the fire occurred, on 29 April 2018, he was involved in the demolition of the ambulance centre in York;
(c)the waste was being temporarily stored on his property, because the local tip had limited opening hours and he was unable to deposit the waste at the tip on a daily basis; and
(d)he would remove and on‑sell material such as metal and gypsum, and would take the rest of the materials to landfill.
(4)Officers of the respondent inspected the materials stored on the appellant's land on 29 April 2018, 1 May 2018 and 23 July 2018 and took photographs on the latter two occasions.
(5)When an officer employed by the respondent spoke to the appellant he became abusive. He told the officer that the respondent should not be on his property and that the officers would 'see what happened' if they tried to enter his property again.
Mr Gillett informed Magistrate Webb that the maximum penalty for the offence is a fine of $200,000 and a daily penalty of $25,000 for each day during which the offence continues. He also informed her Honour that the respondent was not pressing for a daily penalty given that the appellant had entered a plea of guilty and that the maximum penalty gave the court sufficient scope to impose an appropriate fine.
Mr Gillett tendered the photographs that were taken on 1 May 2018, and on 23 July 2018. He also tendered photographs that were taken by respondent's officers on 5 July 2019, when conducting another inspection of the materials stored on the appellant's land.
Her Honour reviewed the photographs and remarked that it appeared from the photographs taken on 5 July 2019 that about 75% of the materials had been removed from the land.
Mr Gillett made the following submissions which were relevant to the issue of sentence:
(1)Though the appellant had said, when he appeared before the court on 12 March 2019, that the materials had been removed from the property, the photographs taken on 5 July 2019 showed that not all of the materials stored on the appellant's land between 29 April 2018 and 23 July 2018 had been removed by the appellant.[4]
(2)The offence was not premeditated and was not a flagrant breach of the Scheme. There was no suggestion that the appellant had notice of or knew, prior to April 2018, that the storage of the materials on his land breached the terms of the Scheme.
(3)The appellant's breach of the Scheme was reversible in that the use of the land for the storage of materials could be fully rectified by the removal of the materials. However, the respondent's understanding was that the materials remained on the appellant's land as at 14 August 2019 because, that morning, Mr A asked the respondent's counsel what the respondent required the appellant to do with the materials.
(4)The scale of the breach was significant, but it was not the most serious planning offence within the scale of such offences for the following reasons:
(a)There was no impact on the amenity of the locality arising from the offence as there was no impact on adjoining properties.
(b)The volume of material had not increased since July 2018 and in fact had been reduced. However, there had not been full compliance with the Scheme and this was an aggravating factor.
(5)There was an element of commerciality in that the material came from the demolition of a property and the demolition material was brought to the appellant's property because it was convenient. However, it was conceded that the storage of the materials was a one‑off event.
[4] See ts 12 March 2019, page 3.
Mr A then made submissions in mitigation, which were not completed because her Honour adjourned the matter to a further hearing to enable the appellant to remove all of the material from his land prior to the imposition of sentence for the offence. The submissions that Mr A made on behalf of the appellant prior to the adjournment were as follows:
(1)The appellant is an employee of a demolition company. One of the 'perks' of his job is that he is able to purchase material (from his employer) to use (to improve his land).
(2)The material (stored on the appellant's land) was building material but not waste. The respondent requested the Environmental Protection Authority (EPA) to make an assessment of the material and following an investigation the EPA made a finding that the material was not waste.
(3)The majority of the material had been removed. The material remaining on his land was material the appellant intended to use to address problems he had with flooding and water management on his land. He also intended to crush some of the material largely composed of clay to use on his driveway. His employer has a crusher which he intended to borrow which is capable of processing bricks and concrete into road base type material.
After hearing the submissions, Magistrate Webb informed the parties that she would adjourn the matter for a period of about six weeks to enable the appellant to use the materials on the projects that he intended. Her Honour informed the appellant that whether the materials were still stored on his land in six weeks' time would have a significant impact on the penalty that she would impose on the appellant.
Her Honour then adjourned the matter for sentence to 23 September 2019.
On 23 September 2019, Mr A appeared again for the appellant.
At the commencement of the sentencing hearing, Mr Gillett informed Magistrate Webb that the respondent had carried out an inspection of the property on 16 September 2019 and that materials remained stored on the appellant's land (in the piles where they had been for some time).
Mr A informed Magistrate Webb that the appellant had not been able to rectify the matter (by removing using the materials) because:
(a)After the matter was adjourned on 14 August 2019, the appellant had to go to Denmark for two weeks to carry out demolition jobs.
(b)The machinery owned by his employer that he needed to use to carry out the work to use the materials on his land had been booked out for four weeks.
(c)He had booked the machinery on the weekend of 7 September 2019 but his father died that day and since then he had been sorting out his family problems. He had only returned to Wundowie on the Friday before the hearing on 23 September 2019.
Mr A also informed Magistrate Webb that the appellant had access to the machinery that week.
As a consequence of Mr A's submissions, Magistrate Webb adjourned the sentencing hearing for one week until Tuesday, 1 October 2019 (being immediately after a long weekend) to provide a further opportunity to the appellant to rectify the breach.
On 1 October 2019, Magistrate Webb asked Mr A whether the materials were gone, and in response Mr A said that most of it was gone.
Mr Gillett then made further submissions as to penalty on behalf of the respondent most of which were repetitive of the submissions that had been made on 14 August 2019. He did, however, reiterate the respondent's position that it was not seeking the imposition of a daily penalty. He informed the court that if her Honour was minded to impose a daily penalty it was the respondent's submission that non‑compliance with the Scheme was continuing but a daily penalty could be imposed only for the period specified in the prosecution notice, being 86 days between 29 April 2018 and 23 July 2018.
In reply, Mr A repeated some of the submissions that he had made on behalf of the appellant on 14 August 2019 and made the following additional submissions:
(1)The reason why some of the materials remained (stored) on the appellant's land was because he was using the material for building and landscaping on his property. The material was largely comprised of bricks and other building materials from the demolition of houses.
(2)Most of the material that remained on the property were bricks and wood. He was still unable to obtain the machine from his employer to crush the brick material and he had created a woodpile from the wood which he used as firewood for himself, his family, his close friends, and other members of the Wundowie community.
(3)The reason why the appellant had entered a plea of not guilty was because an EPA officer told him that he did not need to do anything with the materials and that he was entitled to retain them. The appellant had changed his plea to guilty, albeit late, because it had been explained to him shortly before he entered his plea of guilty that because the materials were building materials he needed to submit a planning application to obtain the permission of the respondent to store the materials.
(4)The appellant had not made an application to the respondent for approval to store the materials. However, officers of the respondent had not taken any steps to explain to the appellant that he could make an application. Nor had he been provided with any formal notice to rectify the breach of the Scheme. Instead of giving notice to the appellant to rectify, the respondent served him with a prosecution notice charging him with the offence.
(5)In response to the respondent's submission that the appellant had been aggressive and abusive towards the officers of the respondent, Mr A said that the appellant was frustrated with the respondent because no notice had been sent to him (to inform him to rectify the breach of the Scheme). Although the appellant does not dispute that he was abusive towards the respondent's officers, he felt intimidated, bullied and harassed by them.
(6)The appellant was angry with the respondent because the respondent's officers had broken locks on his gates to enter the property, which cost him money to repair. The appellant was not aware that the officers of the respondent were empowered by the provisions of the Planning Act to enter his property without his permission.
(7)The appellant had received notices from the respondent on prior occasions in respect of other matters. On one occasion he was given notice that he was required to remove a shipping container on his property, and on another occasion he was given notice to clear his boundaries. In each case, after he received the notice, he complied with the requirements of the notice.
(8)The respondent had not at any time given him notice to remove all of the materials from his land and he did not understand what his obligations were under the prosecution notice. The first person to inform him that he should remove the materials was her Honour.
(9)There was no commercial gain obtained from the commission of the offence.
(10)The appellant has limited ability to pay an exorbitant fine. He is paid $800 to $1,000 a week and has a mortgage of $450,000 on his property. His wife works part‑time. The appellant did not know how much she earns. He has one 13‑year‑old child who resides at home, four adult children, and grandchildren who regularly attend his home.
2.3 The magistrate's sentencing remarks
After remarking that the breach of the Scheme was still continuing, her Honour recited the material facts of the offence and made the following sentencing remarks:
(1)The storage of the materials clearly breached the respondent's regulations (Scheme). There may have been some differences between how the appellant and how the respondent's officers perceived the appellant's behaviour, but the respondent's officers perceived his behaviour, when they attended his property on a number of occasions, as aggressive, abusive and not cooperative. As a result, the respondent elected to proceed to prosecute (rather than serve him with a notice to comply with the Scheme).
(2)The appellant was to be given credit for his plea of guilty, however it could not have been regarded as an early plea of guilty. The appellant's first appearance before the court was on 3 September 2018. By 14 August 2019, Mr A was acting as his counsel and a plea to the charge was entered and the charges adjourned for the purposes of sentencing.
(3)When the plea of guilty was entered, the appellant was given six weeks prior to sentencing to remove the material from his property. He did not remove all of the material. So, at the time of sentencing, the breach of the Scheme was continuing, which in turn had an impact on sentence.
(4)It is accepted that the appellant does not fully realise (comprehend) how significant this offence is, and he feels that he has been treated harshly by the respondent.
(5)In many respects the way this matter progressed was a direct result of the appellant's conduct. It had been impressed upon him by the court at every stage of the proceedings that the offence is serious and the penalties are excessive.
(6)Her Honour had a discretion in regards to (the imposition of) a daily penalty.
(7)It was accepted that the appellant regarded the material as building material that he wanted to use, even though it was demolition material.
(8)The appellant's property is surrounded by heavy bush, so it was accepted that the storage of the materials did not present an eyesore or have a significant impact upon the broader community (that is, no effect on amenity).
(9)The gravamen of this offence is that the appellant consistently failed to comply with the regulations (the Scheme) despite this matter having been before the court for more than one year and despite her Honour urging him to comply. He chose not to comply and did very little to remove the material.
Her Honour balanced these factors above with the fact that:
(a)the appellant is an individual;
(b)there may not have been any commerciality to this offending;
(c)the appellant is of modest financial circumstances (which indicated that although a fine would impose hardship upon him, he did have the capacity to pay a fine); and
imposed a fine of $15,000 on the appellant, and ordered that he pay $5,000 in costs.
3.0 Ground 1 ‑ Does a miscarriage of justice arise in the conduct of the case put before the magistrate?
The appellant's Ground 1 of the appeal raises the issue of whether a miscarriage of justice arose in the conduct of the case put before the magistrate. The appellant argues that there are three ways in which a miscarriage of justice arose.
Firstly, the appellant asserts that a miscarriage arose because he had a defence to the charge against him, which was not put before the magistrate. The only possible defence that could have been put before the magistrate was that the photographic evidence of the storage of materials on the appellant's property was illegally obtained because they were taken while the respondent's officers were on his property without legal authority.
Second, the appellant asserts that a miscarriage arose because he was denied the opportunity to change his plea to a plea of 'not guilty'.
Third, the appellant asserts that a miscarriage arose because his counsel was, at the time he represented the appellant, also a councillor of the respondent. Whether a miscarriage of justice arose in this way depends on whether a fair‑minded reasonably informed observer might or would conclude that there was a real and sensible risk that the appellant's counsel would not have given him objective advice and representation.
As will be shown, the photographic evidence was not illegally obtained because the respondent's officers were legally authorised to enter the appellant's property. Further, there is no basis on which to set aside the appellant's plea of guilty. Accordingly, a miscarriage of justice did not arise on either the first or second basis alleged by the appellant.
As to the third basis, as will be shown, although there was a clear conflict between Mr A's duties to the appellant and his duties to the respondent as an elected councillor of the respondent, I am not satisfied that a miscarriage of justice arose.
I turn now to explain these conclusions.
3.1 Could a defence have been put before the magistrate on the basis that the photographic evidence of the materials on the appellant's property was illegally obtained?
The short answer to this question is 'no'.
The only basis raised by the appellant which goes to whether it could have been open to him, if properly advised, to maintain a plea of not guilty is his contention that the photograph evidence of his storage of the materials on his land ought to have been excluded on grounds of inadmissibility.
Officers of the respondent were authorised by law at the material times to enter the property of the appellant at any time without notice, or without a warrant, and without his consent.
As part of the material facts relied upon by the respondent, photographs depicting the storage of materials on the appellant's property, taken on 1 May 2018, 23 July 2018 and 5 July 2019, were tendered into evidence to show:
(a)that at the material times the land was being used to store materials;
(b)the nature and extent of material stored on the land, so that the court could determine a sentence that is commensurate with the seriousness of the offence; and
(c)that after the appellant was charged with the offence on 16 August 2018,[5] the breach of the Scheme had not been remedied, because by 5 July 2019,[6] the materials stored upon the land had not been entirely removed.
[5] The date of the prosecution notice.
[6] The date on which the last bundle of photographs were taken by the respondent's officers.
It appears not to be in dispute that the photographs were taken by officers employed by the respondent who forcibly entered the appellant's land by cutting locks on gates to the appellant's land and without his permission. It also appears that at no material time did the officers obtain a warrant to enter the land of the appellant, or give notice to the appellant of their intention to enter his land.
In support of his appeal on this ground, the appellant points out that pursuant to s 3.31 of the Local Government Act 1995 (WA), except in an emergency or if the entry is authorised by the warrant of justice, entry by or on behalf of a local government on to any land, premises or thing is not lawful unless:
(a)the consent of the owner or occupier has been obtained; or
(b)the owner or occupier has been given notice of the entry.
Section 3.31 is contained within subdiv 3 of pt 3, div 3 of the Local Government Act. The powers of entry in subdiv 3 (and, it therefore follows, the powers of entry in s 3.31) apply only where a local government authority is performing a function of local government under the Local Government Act.[7] When the officers of the respondent entered the land of the appellant they were not performing a function of local government under the Local Government Act, but were performing a function under the Planning Act.
[7] Local Government Act 1995 (WA) s 3.28.
In any event, pursuant to s 3.29 of the Local Government Act, the powers of entry upon land conferred by subdiv 3 of pt 3, div 3 of the Local Government Act are in addition to and not in derogation of any power of entry conferred by any other law.
Officers employed by the respondent, when exercising their power to investigate whether the Scheme is being complied with, are not confined to the powers of entry conferred by s 3.31 of the Local Government Act. They may exercise a power of entry that does not require the permission of the owner or occupier of the land or authorisation by a warrant.
The power of entry and inspection (without warrant or permission) that was exercised by officers of the respondent is conferred by cl 79 of pt 10 of sch 2 of the Regulations.
Clause 79 provides:
79. Entry and inspection powers
(1)The local government CEO may, by instrument in writing, designate an officer of the local government as an authorised officer for the purposes of this clause.
(2)An authorised officer may, for the purpose of monitoring whether the local planning scheme is being complied with, at any reasonable time and with any assistance reasonably required ‑
(a)enter any building or land in the Scheme area; and
(b)inspect the building or land and any thing in or on the building or land.
The provisions in sch 2 of the Regulations are deemed provisions, being provisions to which s 257B of the Planning Act applies.[8] Pursuant to s 257B of the Planning Act, deemed provisions have effect as part of each local planning scheme. The Scheme, pursuant to s 87(4) of the Planning Act has effect as if enacted by the Planning Act. Therefore, the Scheme includes the deemed provisions of sch 2 to the Regulations.
[8] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) reg 10(4).
Consequently, the fact that the officers of the respondent did not have the permission of the appellant to enter his land, or did not have a warrant to enter to take photographs to use as evidence in the prosecution does not render the taking of the photographs, or the content of the photographs, evidence illegally obtained, because the officers were authorised by cl 79 of pt 10 of sch 2 of the Regulations to enter the appellant's land without his permission.
3.2 Was the appellant denied the opportunity to change his plea to not guilty (and did he have grounds for a change of plea)?
The short answer to this question is 'no'.
The circumstances in which a plea of guilty will be set aside in an appeal against conviction are as follows:[9]
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v The Queen [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v The Queen (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.
[9] Vella v The State of Western Australia [2006] WASCA 129 [26] (Steytler P) (Wheeler & Buss JJA agreeing).
It is clear from reading the transcript of the proceedings before the Magistrates Court on 14 August 2019, 23 September 2019 and 1 October 2019 that there is no indication from the matters stated by him or his counsel that he did not understand the nature of the charge or did not intend to admit the material facts alleged against him.
The appellant did not at any time give any indication that he wished to change his plea from guilty to not guilty. It is also clear from the transcript that on each occasion he appeared before the Magistrates Court he addressed Magistrate Webb directly on a number of occasions to clarify particular issues, none of which were issues upon which it could be open to argue were issues which raised any defence to the charge.
The elements of the offence are not complex. All that the prosecution had to prove was that on and between the material dates, the appellant had used land zoned rural for the storage of materials without first obtaining development approval from the respondent. The fact that the appellant wished to use the materials to improve his property was not a defence to the charge. However, this fact may have been capable of being regarded as a mitigatory factor. I return to this point below when considering Ground 2 of the appeal.
Importantly, despite being afforded an opportunity to do so by this court, the appellant has put nothing before the court upon which it could be found that his guilty plea was obtained by improper means.
3.3 Has it been established that there was a real and sensible risk that the appellant would not have been given objective advice and representation by his counsel?
Usually this point is raised where an application is made to restrain counsel from acting for a party where they have previously appeared for the other party or parties in the proceedings, prior to the proceedings commencing.[10] This is not such a case.
[10] See for example Grimwade v Meagher [1995] 1 VR 446; Ismail-Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379 [30] ‑ [40] (Steytler P), [62] ‑ [78] (EM Heenan AJA).
The principles that the court is to consider where it is alleged that the conduct of defence counsel at trial occasioned a miscarriage of justice were recently summarised by the Court of Appeal in ZHA v The State of Western Australia:[11]
[11] ZHA v The State of Western Australia [2020] WASCA 101 [68] ‑ [70].
In McMahon v The State of Western Australia, McLure P summarised the law relating to a ground of appeal which alleges a miscarriage of justice by reason of defence counsel's conduct of the defence case, as follows:
'The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre‑suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross‑examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).'
In Colley v The State of Western Australia, McLure P referred to the extract which we have reproduced from her Honour's reasons in McMahon and then said:
'The appellant's claims in this case fall within the 'process' category. That is, the appellant claims he was deprived of a fair trial according to law.
As is clear from the use of the word 'ordinarily' in the first paragraph of the extract, it is a general rule that an accused is bound by the way a trial is conducted by counsel. In particular, not all decisions made by counsel contrary to instructions will bind the accused. The point is made clearly by Gleeson CJ in Nudd v The Queen:
"A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions [9]. (emphasis added)"
For example if, as the appellant says in this case, he instructed trial counsel not to defend the charge on the basis of self‑defence because he (the appellant) did not at any stage hit the deceased, to do so would be outside the scope of any implied power in the retainer to make decisions on behalf of the appellant.
Moreover, it is outside the scope of any implied retainer for trial counsel to conduct a positive defence that is inconsistent with the accused's instructions as to what had actually occurred. A "positive defence" includes cross‑examination of witnesses for the prosecution suggesting, expressly or impliedly, that counsel is putting his or her client's instructions as to relevant factual matters.
It is unnecessary to determine whether trial counsel may, with the client's consent, put in cross‑examination a positive defence that is inconsistent with his or her client's instructions as to what actually occurred. Even if permissible, the client would have to be informed by trial counsel that he or she could not lead evidence from the accused that was inconsistent with his or her instructions as to what actually occurred. That is, prior to the cross‑examination the client would have to elect not to give evidence at trial. In that way there would be no breach of the first aspect of the rule in Browne v Dunn (Browne v Dunn). As to which, see Merrey v The State of Western Australia. (citations omitted)'
More recently, in Morgan v The State of Western Australia [No 2], this court stated the relevant general principles which govern the determination of whether the conduct of defence counsel has caused a miscarriage of justice, as follows:
'The relevant general principles as to when a miscarriage of justice may arise through incompetent representation were recently summarised by this court in Huggins v The State of Western Australia (Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401]). We adopt that comprehensive analysis without repeating it, noting the following passage of the reasons in that case (Huggins [376]):
"An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (citations omitted)"
Further, as was recently reiterated in Jeffery v The State of Western Australia (Jeffery v The State of Western Australia [2018] WASCA 219 [104] (citing Buss P in Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [115]), this court does not examine whether a decision taken by the appellant's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character.
In Craig v The Queen (Craig v The Queen [2018] HCA 13; (2018) 92 ALJR 390), the High Court considered how inadequate legal advice on an accused's choice to give evidence may give rise to a miscarriage of justice. The court recognised that a trial may be unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice, Craig [32].
However, the High Court rejected the proposition that, where an accused is aware of the right to give evidence, any material error in legal advice bearing on the exercise of the right denies an essential condition of a fair trial, Craig [26] ‑ [27]. In the context of a decision not to give evidence, the court considered that, Craig [27]:
"At the least, demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence."
The High Court held that an appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision, Craig [33].'
In this appeal no issue is raised that incompetent representation was provided to the appellant. The issue is whether the appellant's counsel had a personal interest which conflicted with his duties to the appellant, which conflict gave rise to a miscarriage of justice.
The respondent in its supplementary submissions, filed on 2 October 2020, put a submission that Mr A as an elected member of the respondent is not an officer of the respondent. This submission appears to be put on the basis that no conflict of interest arises between Mr A's professional and ethical obligations to the appellant and his obligations to the respondent as an elected member. In particular, the respondent put the following submission:
An elected member of a local government is not an employee of the local government and is not involved in the day to day operations or running of a local government. Rather, local government council members, which includes the mayor or president and councillors, do not have any authority to act or make decisions as individuals. They are members of an elected body that makes decisions on behalf of a local government through a formal meeting process.
Officers or employees of local governments, on the other hand, are involved in the day to day operations of the local government and have authority to act or make decisions as individuals. Accordingly, the appellant's Counsel was not an 'officer' of the Shire when representing the appellant.
With respect, this submission misses the point: Mr A is and was an elected member of the respondent, and as the holder of such an office he has an interest in ensuring that the respondent's Scheme is complied with. The duties of the office of councillor of a local government authority is incompatible with the duties and functions of a lawyer who accepts a brief to act for a person who is charged with an offence instituted by the local government authority. This is because a councillor of a local government authority has an interest in ensuring the local government scheme that is made by resolution of council is complied with, without exception, except as authorised by law.
A duty and function of all elected members of a local government authority is, by operation of the Planning Act and Regulations, to initiate by resolution (in a meeting of councillors) the preparation, adoption and/or amendment of a local planning scheme, and following the prescribed procedures that apply for advertisement for the making or amendment of a local planning scheme, to adopt by resolution a draft with or without modifications for approval by the Minister of Planning.[12]
[12] Planning and Development Act 2005 (WA) pt 5; Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
In such circumstances, it might or would reasonably be thought that a person who is a councillor of the local government authority who is the prosecutor of an offence, may not as legal counsel be able to provide the requisite objective advice to a person charged with an offence contrary to the local government scheme, as their interests and duties to the local government authority and their duties to their client may be incompatible.
The interest of the appellant's counsel as a councillor of the respondent can properly be characterised as a personal interest.
In Isbester v Knox City Council, the High Court found in the context of whether an officer of a council (an employee) who determined that charges should be laid against the owner of the dog who then arranged for a panel of three delegates of the council, including herself, to conduct a hearing to determine whether to recommend that the dog should be destroyed had a personal interest in the outcome of the charges. As such the officer's roles were found to be incompatible.[13] The majority of the court explained:[14]
A 'personal interest' in this context is not the kind of interest by which a person will receive some material or other benefit. In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them.
[13] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135.
[14] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [46] (Kiefel, Bell, Keane & Nettle JJ).
In R v Szabo,[15] the appellant was convicted, after trial, of burglary and rape. He appealed his convictions, relevantly, on the ground that his counsel at trial was in an 'on again-off again' romantic relationship with the prosecutor at the time of his trial and that this gave rise to a miscarriage of justice. The appellant learned about the nature and extent of the relationship between his counsel and the prosecutor after the trial, while he was in prison. The Queensland Court of Appeal unanimously upheld the appeal on this ground (and on another ground, which is not presently relevant) and ordered a re‑trial. Justice Thomas observed that:[16]
[A]llegations of disquiet concerning the conduct of counsel are not to be determined by direct transposition of the tests that have been formulated in relation to apparent bias on the part of decision‑makers, but that some analogy may properly be drawn. Bias on the part of a judicial officer is an abuse or a perceived abuse of judicial power. The disquiet that arises from the fear that counsel may have failed in their duty is a serious matter, but it is a disquiet of a different kind. It arises out of concern that a person with an important role in the trial may not have discharged it adequately in favour of the client. If a reasonable suspicion arises that defence counsel has 'run dead' or colluded with the Crown prosecutor contrary to the interests of the accused or for some extraneous purpose failed to play the proper role of defence counsel, that would reveal a seriously unfair contest, and would in my view demonstrate a miscarriage of justice sufficient to require the conviction to be set aside.
The question might best be posed as whether, with knowledge of all relevant circumstances, an ordinary fair‑minded citizen in the position of the appellant would entertain a reasonable suspicion that justice had miscarried. Such a conclusion, however, does not necessarily follow from the mere fact that the Crown prosecutor and defence counsel have an association or even a sexual relationship. All relevant circumstances have to be considered, including the conduct displayed by defence counsel, which might feed or rebut any suspicion of unfairness.
Applying these principles to the present circumstances, one immediately has to consider whether it is proper for persons in particular relationships to act for contrary interests.
[15] R v Szabo [2000] QCA 194; [2001] 2 Qd R 214.
[16] R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 [59] ‑ [61].
Applying these principles, Thomas JA concluded that the mere fact that defence counsel was in a relationship with the prosecutor would not necessarily give rise to a reasonable suspicion that he did not act properly as defence counsel.[17] However, defence counsel's failure to disclose, to the appellant, his relationship with the prosecutor deprived the appellant the opportunity to change, or attempt to change, the course to be followed, and this was capable of contributing to a miscarriage of justice.[18]
[17] R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 [63].
[18] R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 [78] ‑ [79].
Chief Justice De Jersey agreed with Thomas JA's reasons[19] (albeit that the Chief Justice appears to have applied a slightly different test for whether a miscarriage of justice arose, that is, whether the circumstances of the case would engender reasonable suspicion or apprehension in a fair‑minded, informed observer as to whether defence counsel necessarily acted with fearless independence).[20]
[19] R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 [2].
[20] R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 [6].
Justice Davies' reasons for concluding that a miscarriage of justice arose were somewhat different.[21] His approach must be construed as a minority view. His Honour held that the test, for whether a miscarriage arose, was 'whether a fair‑minded person, in the position of either the appellant or a member of the public, might reasonably apprehend that because of defence counsel's relationship with the prosecutor or its consequences, the appellant was deprived of a fair trial'. Justice Davies added that this test could not be satisfied unless such a fair‑minded person might entertain the reasonable view that the trial would have been conducted differently had defence counsel and the prosecutor not been in a relationship.[22] His Honour found that, on the facts before him, this test was satisfied.[23]
[21] R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 [11].
[22] R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 [15].
[23] R v Szabo [2000] QCA 194; [2001] 2 Qd R 214 [16] ‑ [18].
R v Szabo is somewhat analogous to the present appeal. Both appeals concern the question of whether a miscarriage of justice arose due to a conflict between defence counsel's duties to their client and some personal interest of defence counsel in the prosecuting authority or in the prosecutor themselves. However, R v Szabo is ultimately distinguishable from the present appeal. Firstly, the offences concerned, and how the matters proceeded at first instance, are very different. The present appeal concerned a plea of guilty to a statutory planning offence where, objectively, on the prosecution facts and on the facts that were open to be put to the court on behalf of the appellant, the appellant had no defence. By contrast, R v Szabo concerned a trial of charges for burglary and rape where issues of how to conduct a defence to secure an acquittal of the charges were raised, particularly, whether the accused should or should not elect to give evidence in the trial.
Secondly, the appellant in R v Szabo was not aware of the relationship between the prosecutor and his defence counsel until after he had been convicted and he had no opportunity to have any say as to whether his counsel should cease to represent him. In this matter, the appellant's objection to Mr A acting for the appellant was made only in the appeal, that is, after conviction, and after sentence. Importantly, however, the appellant has put nothing before the court to indicate when he became aware that Mr A was an elected member of the respondent. Thus, it is unknown whether the appellant was aware, at the time Mr A represented him, that Mr A was also a councillor of the respondent. Further, the appellant has put nothing before the court to indicate that Mr A did not put to Magistrate Webb the matters that were relevant to the plea of guilty and in mitigation, in accordance with his instructions to Mr A, or that Mr A omitted to put any relevant matter.
There is nothing before this court to indicate that a plea other than a plea of guilty was open on the material facts that the prosecution put to her Honour to establish the elements of the offence.
When the transcript of the proceedings are carefully examined, although a fair‑minded observer might reasonably apprehend that the appellant's counsel might not have provided the appellant objective advice, this is not enough to establish a miscarriage of justice.
A finding that the appellant's counsel might not have provided the appellant with objective advice without more, in this particular case, is not sufficient to raise a miscarriage of justice to enable the appellant's conviction to be set aside as there is insufficient evidence before the court to find that an ordinary citizen in the position of the appellant would have a reasonable suspicion that the appellant had not been provided with objective advice about whether he had a defence to the charge and the matters he could put to the court in mitigation and as to sentence. This finding implies nothing about whether Mr A conducted himself other than as required by his professional and ethical obligations to the appellant.
In these circumstances, it cannot be established that a miscarriage of justice arose from the conduct of the appellant's defence counsel.
For these reasons, Ground 1 of the appeal has no prospect of success and leave to appeal on this ground should be refused.
4.0 Ground 2 ‑ Appeal against sentence ‑ manifest excess
4.1 General Principles
This ground of appeal asserts implied rather than express error. The principles of implied error are well‑established.
Implied error arises when the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.[24]
[24] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55].
In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of:[25]
(1)the maximum sentence prescribed by law for the crime;
(2)the standards of sentencing customarily imposed with respect to it;
(3)the place that the criminal conduct occupies in the scale of seriousness of crimes of that type; and
(4)the offender's personal circumstances.
[25] DKN v The State of Western Australia [2018] WASCA 87 [34]; Krencej v The State of Western Australia [2019] WASCA 82 [55].
When sentencing an offender:
(a)s 6(1) of the Sentencing Act 1995 (WA) requires that the sentence imposed must be commensurate with the seriousness of the offence; and
(b)s 6(2) of the Sentencing Act requires that the seriousness of an offence be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors; and any mitigating factors.
4.2 General principles applying to sentencing for planning offences
The general principles that govern sentencing for planning offences were summarised by Fiannaca J in Caruso v Shire of Augusta ‑ Margaret River:[26]
The purpose of planning controls and the appropriate approach to their enforcement were identified by Hasluck J in Swan Bay Holdings Proprietary Ltd v City of Cockburn as follows:
'Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also upon 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.'
As his Honour also noted in that case, the need for such penalties exists even when the unauthorised development may be thought to be compatible with the zoning and approval is given retrospectively, otherwise planning approvals would be reduced to the level of a mere formality. As I indicated earlier, the magistrate in the present case had regard to the principles outlined by Hasluck J in Swan Bay Holdings.
In cases where there is a commercial motive for the breach of planning controls, the need for both personal and general deterrence is particularly marked. As Murray J said in Able Lott Holdings Pty Ltd v City of Fremantle (Able Lott Holdings (1)), referring to the magistrate's remarks in that case concerning the need for deterrence:
'It was important in that context that the penalties should be commensurate with the seriousness of the breaches and should not be of an order which, in the judgement of the court, the appellant might regard as an unfortunate, but acceptable, operating expense.'
After adopting what Hasluck J said in Swan Bay Holdings concerning the purpose of planning controls, his Honour confirmed that, in the case he was dealing with, deterrent penalties were required, 'and the level of fines had to be such, within the legislative framework, as to make the offending behaviour commercially unattractive'. In my opinion, that statement reflects a principle of general application when there has been a commercial imperative behind a breach of the planning laws.
4.3 Is error established?
[26] Caruso v Shire of Augusta - Margaret River [2016] WASC 379 [88] ‑ [91]. (footnotes omitted)
The maximum penalty for the offence under s 218 of the Planning Act is, pursuant to s 223, a fine of $200,000 and, in the case of a continuing offence, a further fine of $25,000 for each day during which the offence continues.
There are no standards of sentencing customarily observed in relation to an offence of this character. In Hunter v City of Joondalup, Pritchard J relevantly observed:[27]
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.
In addition, past cases must be viewed bearing in mind that there has been a change in the maximum penalty in respect of s 218 offences from $50,000 to the $200,000 maximum penalty which presently applies. Doing the best that I can, for individuals who use land in breach of the Act, other than by constructing buildings without approval, fines have ranged from that in the case of Uxcel v City of Bayswater, where the offender received a fine of $5,000 for installing a sign without approval (when the maximum was $200,000), where the offending was clearly at the lowest end of the spectrum of seriousness; to Callan v City of Fremantle, where first offenders used a shed on their property to store building materials without approval and, on appeal, each received a fine of $4,000 (when the maximum penalty was $50,000); to Teissier v City of Rockingham, where the offender (also a first offender) received a fine of $15,000 for causing about 250 truckloads of soil to be delivered to his property without approval (when the maximum fine was $50,000). In cases involving the construction of buildings without approval, or protracted use of land for commercial purposes without approval, much higher fines have been imposed.
[27] Hunter v City of Joondalup [2016] WASC 424 [104] ‑ [105]; see also her Honour's comprehensive summary of sentences imposed on individuals in Beydoun v City of Stirling [2015] WASC 25 [157] ‑ [168].
From the cases that have considered whether fines imposed on persons for a breach of s 218 of the Planning Act are manifestly excessive, it is clear that the offence applies to vastly different circumstances and that there is no established range of sentences for offences under this provision. However, the relevant factors that are usually raised in a case involving storage offences contrary to a planning scheme are as follows:[28]
(a)whether the breach was part of a commercial activity, and whether the breach resulted in a financial gain to the offender;
(b)whether, on the one hand, the breach was inadvertent or a credible explanation for the breach was raised or, on the other, the breach was a flagrant disregard of planning requirements;
(c)whether the offender had been given notice to comply prior to being charged with the offence;
(d)whether the prohibited use of the land was reversible, and if so what steps if any were taken by the offender to comply with the planning laws;
(e)whether the breach was protracted;
(f)the extent of the prohibited use, that is the amount of materials stored in breach of the planning laws;
(g)whether there was any impact on other adjoining landowners or impact on amenity; and
(h) whether the offender had prior convictions for any similar breaches of planning laws.
[28] See Austrend Construction Pty Ltd v City of Swan [2017] WASC 67 (McGrath J); Callan v City of Fremantle [2008] WASC 197; and Hunter v City of Joondalup [2016] WASC 424 (Pritchard J).
In this matter, her Honour accepted that the breach had no element of commerciality, and there was no effect on the amenity of the area or any effect on the use of the land by any adjoining landowners.
As the respondent points out in its written submissions, the evidence before her Honour established that the appellant was storing demolition material on his property with a view to sorting through the material to see what he could use on the property. What he could not use was to be disposed of. It also appears that the appellant did dispose of the materials that he did not intend to use, and he had disposed of 75% of all of the materials by the time he entered the plea of guilty on 14 August 2019. Her Honour accepted that the photographs taken by the respondent on 5 July 2019 indicated that about 75% of the materials had been removed.[29]
[29] ts 14 August 2019, page 5.
Although her Honour found she had a discretion to impose a daily penalty, a daily penalty could have been applied only to the period specified in the prosecution notice as the period for which the offence was continuing, namely, 29 April 2018 to 23 July 2018. Insofar as her Honour's discretion applied to impose a daily penalty, it would have only applied to this period. Her Honour did not, however, impose a daily penalty. Although it is not material, on the facts before the court the imposition of a daily penalty for this period of time would have arguably raised an implied error of manifest excess. This is because prior to the service of the prosecution notice on the appellant, which notice is dated 16 August 2018 (which is after the period specified as the period during which the breach continued), the breach must have been inadvertent; it is common ground that the appellant had no notice prior to the service of the prosecution notice that the use of his land for storage of materials was in breach of the Scheme.[30]
[30] Mr Gillett (the prosecutor) said at ts 14 August 2019, pages 6 ‑ 7: 'There's no suggestion that Mr O'Malley had been advised by the shire prior to them becoming aware of the materials on his property on 29 April. There's no suggestion that the shire had been in touch with him prior to that and advised him that he shouldn't store demolition waste or building materials on his property. So the shire accepts that, probably, the first Mr O'Malley may have known about the city's planning - the shire's planning controls was when it was brought to his attention in April 2018'.
It would have been open to her Honour to give significant weight to the fact that the respondent did not give the appellant notice of the breach prior to charging him with the offence by issuing a prosecution notice. Having reviewed a number of authorities which have concerned appeals against sentence for a breach of s 218 of the Planning Act, it appears that in most matters local authorities have taken steps to formally issue a notice or several notices to an offender requiring the offender to comply with the planning laws (by either reversing the breach or applying for development approval) by a particular date by giving notice that in the event of the offence continuing that a prosecution notice will issue. It is common ground that this did not occur in this case. Notwithstanding this fact, the appellant was afforded well over 12 months to take steps to reverse the breach.
Her Honour properly had regard to the fact that from the time of the appellant's first appearance on the return date of the prosecution notice (3 September 2018) the appellant was on notice that he should seek legal advice about the charge because the maximum penalty for the offence under the Planning Act was a fine of $200,000.[31] Although the appellant took steps to remove 75% of the materials by 5 July 2019, it is clear that the appellant did not obtain legal advice (which advice appears clearly to have been that he had no defence to the charge) until shortly before entering a plea of guilty on 14 August 2019.
[31] ts 3 September 2018, page 6.
In fixing the amount of the fine which her Honour regarded as commensurate with the seriousness of the offence, the factor that her Honour regarded as the most important was the continuing non‑compliance by the appellant with the court's direction that he should either remove all the materials or use them for improvements to his land.
Prior to sentencing, her Honour provided the appellant with two opportunities to remove all of the materials or to use them (to make improvements to his property) and gave the appellant approximately seven weeks in total to do so. Her Honour also made it very clear to the appellant that whether or not he reversed the breach by removing or using all of the material would affect the penalty that she imposed. That is, her Honour made it very clear that in assessing the seriousness of the offence and in imposing a fine that was commensurate with the seriousness of the offence, she would take into account whether or not the appellant had reversed the breach.
Put more simply, it was made clear to the appellant that if he reversed the breach, the fine imposed would be less than any fine that would be imposed if the breach was not reversed by the time of sentencing. To this extent her Honour made an unimpeachable finding that the breach of the Scheme by the appellant was protracted. By this finding, her Honour found that the appellant's non‑compliance with the court's direction that there be rectification of the breach, was continuing at the time of sentence.
Although her Honour made no specific finding as to the extent of the materials that were stored on the appellant's land, it is clear that the scale of the materials stored were significant. However, in this matter, in light of the fact that the appellant's land is zoned rural and there was no effect on amenity as the materials could not be viewed from anywhere outside of the appellant's land, the fact that the volume of materials stored on the land was significant was not material.
In imposing a fine, the court must consider the means of the offender and the extent to which the fine will burden the offender. In fixing a fine of $15,000, her Honour had regard to the appellant's capacity to pay by observing that a substantial fine will be a burden upon the appellant but that he did have the capacity to pay off a fine.
In all the circumstances, when regard is had to the principle that general and specific deterrence demands that significant penalties be imposed for planning offences that involve continuing disregard of planning requirements over a significant period of time, I am not persuaded that it could be established that her Honour made an error when she imposed a fine of $15,000 in respect of the charge.
For these reasons, Ground 2 of the appeal has no prospect of success and leave to appeal on this ground should be refused.
5.0 The orders that should be made to dispose of the appeal
For these reasons, the following orders should be made:
(a)the application to extend time to file the application for leave to appeal is granted and time to file the application is extended to 2 December 2019;
(b)leave to appeal on each ground of appeal be refused; and
(c)the appeal be dismissed.
Whilst the usual order, where an appeal is dismissed, is that costs follow the event, requiring the appellant to pay the respondent's costs, in this matter it is my view that there should be no order as to the costs of the appeal.
This is because it appears that the conflict of interest complained about by the appellant may have been a result of the prosecutor for the respondent making a suggestion in open court that the appellant seek advice from Mr A because he was a local practitioner who had experience in shire work.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith26 NOVEMBER 2020
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