OzTran Aust Pty Ltd v Town of Port Hedland - [2017] WASC 28

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: OZTRAN AUST PTY LTD -v- TOWN OF PORT HEDLAND [2017] WASC 28

CORAM: BANKS-SMITH J

HEARD: 5 SEPTEMBER 2016

DELIVERED : 10 FEBRUARY 2017

FILE NO/S: SJA 1036 of 2016

BETWEEN: OZTRAN AUST PTY LTD
Appellant
AND
TOWN OF PORT HEDLAND
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M RIDLEY
File No  :PH 544 of 2014

Catchwords:

Appeal - Planning offence - Use of land contrary to scheme - Appeal against sentence - Whether fine to exceed commercial benefit - Whether aggravating circumstances proved - Whether fine manifestly excessive

Legislation:

Criminal Appeals Act 2004 (WA), s 14
Planning and Development Act 2005 (WA), s 218, s 223
Sentencing Act 1995 (WA), s 7, s 9AA, s 40

Result:

Leave to appeal granted on grounds 1 - 5, 7
Appeal allowed on grounds 1 - 4, 7
Sentence set aside
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen SC
Respondent: Mr D P Gillett

Solicitors:

Appellant: K & L Gates
Respondent: McLeods Barristers & Solicitors

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

Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87
Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431
Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39
Al Hussein v Commissioner for Consumer Protection [2014] WASC 296
Australian Competition and Consumer Commission v AirAsia Berhad Company [2012] FCA 1413
Beydoun v City of Stirling [2015] WASC 25
Caruso v Shire of Augusta ‑ Margaret River [2016] WASC 379
CE Oates & Son Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144
Chan v The Queen (1989) 38 A Crim R 337
Chen v City of Stirling [2014] WASC 183
Chong v The City of Mandurah [2013] WASC 470
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37
Evans v Richards [2015] WASC 53
Fullgrabe v The State of Western Australia [2006] WASCA 138
Goddard v City of Stirling [2009] WASC 28
Harding v The State of Western Australia [2015] WASCA 27
Highrock Australia Pty Ltd v Town of Port Hedland (Unreported, PH 1860 of 2013, 23 January 2014)
House v The King (1936) 55 CLR 499
JKL v The State of Western Australia [2012] WASCA 215
KAT v The State of Western Australia [2017] WASCA 11
Le v The State of Western Australia [2015] WASCA 73
Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 396
Mack v The State of Western Australia [2014] WASCA 207
Markarian v The Queen[2005] HCA 25; (2005) 228 CLR 357
Ninyette v Holmes [2015] WASC 287
Nugent v City of Bayswater [2017] WASC 25
Paolucci v Town of Cambridge [2013] WASC 50
PAS v The State of Western Australia [2009] WASCA 210
Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234
Roberts v The State of Western Australia [2014] WASCA 239
Rowsell v The State of Western Australia [2015] WASCA 2
Sinclair v The State of Western Australia [2014] WASCA 22
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81
Taylor v City of Kwinana [2015] WASC 252
Teissier v City of Rockingham [2014] WASC 158
The State of Western Australia v JWRL (a child) [2010] WASCA 179
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Winmar v Clark [2015] WASC 314
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
BANKS-SMITH J:

Introduction

On 30 March 2016, the appellant entered a plea of guilty to one charge of carrying out a development contrary to s 218(a) of the Planning and Development Act 2005 (WA), namely using land for residential accommodation without having first obtained the approval of the Council of the Town of Port Hedland as required under the relevant town planning scheme.
The charge related to the time period 13 May 2013 to 10 January 2014.
The learned magistrate imposed a $600,000 fine by way of sentence and the appellant was ordered to pay the respondent's costs. No daily penalty was imposed.
The appellant seeks leave to appeal against the sentence imposed.
For the following reasons, I have determined that leave to appeal should be granted and the appeal allowed.

Background

The following uncontentious facts are taken from the findings set out in the magistrate's written reasons.[1]
[1] Reasons delivered 7 April 2016.
The appellant was the lessee of a property in Port Hedland located in an industrial zone and was also in possession of the property. Residential use of the property was prohibited under the relevant zoning.
In late 2011, officers from the respondent identified that the property was being used for residential purposes. Nine six‑bedroom transportable units (more generally known as dongas) were on site, together with three additional transportable units, two for use as an ablution block and one as a laundry.
At that time, the sole director of the appellant was Brett Stanton. During 2012, officers from the respondent wrote to the appellant. They also met with Mr Stanton in August 2012. At that meeting, Mr Stanton told the officers that some 30 ‑ 35 employees were using the units for residential purposes at any one time and requested time to relocate the units, indicating the move should be completed by early 2013. A satisfactory septic system had been installed but the property was not sealed.
By 13 May 2013, the units had not been moved and the officers again spoke to Mr Stanton who informed them that he was still arranging for the units to be relocated. Officers from the respondent then told Mr Stanton that proceedings would be commenced.
In July 2013, the respondent issued proceedings with respect to the use of the property against a company called Highrock Australia Pty Ltd (Highrock), of which Mr Stanton was also the sole director. Highrock entered a plea of guilty, but it appears there was some confusion as to the identity of the lessee of the property and in due course a successful application was brought to vacate the guilty plea.[2]
[2] Highrock Australia Pty Ltd v Town of Port Hedland (Unreported, PH 1860 of 2013, 23 January 2014) (Magistrate Potter).
On 31 January 2014, the respondent commenced the prosecution the subject of this appeal against the appellant.
On 1 July 2014, Qube Holdings Pty Ltd (Qube) acquired a group of related companies that included the appellant. From that time, Mr Stanton ceased being a director and having any involvement in the appellant.
Qube was unaware of this prosecution at the time of the acquisition, having relied upon warranties as to liabilities provided by Mr Stanton. Mr Stanton apparently did not disclose that the prosecution had been commenced.
The transportable units were then removed from the property.

The sentencing remarks

The magistrate delivered written reasons. Her Honour commenced by describing the conduct as 'in the high range of offending', taking into account a range of matters identified by her as aggravating. Those were:[3]
[3] Reasons [15].
a.the offence continued for a substantial period of time between 13 May 2013 to 10 January 2014 which is 243 days (7 months and 29 days) and the length of the offence occurred against a background of the breach having first been detected in late 2011 and not being rectified until May 2015;
b.no relevant approvals were sought at any time;
c.the nature of the development was contrary to the industrial zoning of the property;
d.the conditions of the development did not meet the basic requirements of residential development as the area remained unsealed;
e.a septic system was installed at the property without approval;
f.the development occurred within a cyclone‑prone area and did not meet cyclone ratings and posed an ongoing risk to the safety to the residents and to people and property in the immediate area;
g.the development was for a commercial benefit as it housed employees who worked, for a related company, to complete contracts held by the accused company;
h.the rental loss to the economy of the Town of Port Hedland by housing employees in that manner would impact the community at large.
Her Honour then took into account two mitigating factors: she noted that the appellant had no prior history of similar offending and had made an early plea of guilty.[4] Her Honour also took into account the change in control of the appellant in the context of specific deterrence and also in deciding that no daily penalty should be imposed, noting that the purpose of a daily penalty is to discourage ongoing breaches.[5] The appellant and the respondent had agreed at the time that the respondent would not seek a daily penalty on the basis that the appellant had pleaded guilty.[6]
[4] Reasons [16], [22] ‑ [25].
[5] Reasons [34], [56].
[6] Reasons [54]; ts 16.
Relevantly, her Honour made the following comments as to penalty:[7]
Penalty
As I stated above, the seriousness of the offence is at the upper end of offending of this nature.
Any fine must, in my view, exceed any potential commercial benefit obtained by the accused company by its actions.
Calculation of the commercial gain is not an exact science on the evidence presented for sentencing. The prosecution submitted that relying on the admission by Mr Stanton that 30‑35 employees resided at the property at any one time the potential rental savings over the period of the breach, 13 May 2013 to 10 January 2014, were in the region of $15,000.00 per week or $510,000.
There are also other potential commercial gains. The ability to complete the contracts held by the accused company at a reduced rate not available to companies competing for the same contracts who relied on commercial rental rates for their employees. Potential additional rental income from the occupants or the entity which owned the buildings. Potential tax benefits from installation of buildings and services and claiming of depreciation.
In my view, the relevant income and commercial benefits to other entities by allowing the property to be used for a residential development are, in my view, relevant commercial considerations in determining the appropriate penalty.
On the evidence available to me, I am satisfied that the commercial benefit for the period of the prosecution would have exceeded $500,000.00. It is appropriate in those circumstances that any fine imposed exceeds that sum as any lesser sum would be of an order that the accused company, and any company considering similar development, would simply regard it as 'an unfortunate but acceptable operating expense'.
[7] Reasons [43] ‑ [48].

Proposed grounds of appeal

There are seven proposed grounds of appeal:
1.The learned Magistrate erred in law, by acting on a wrong principle or by taking into account an irrelevant consideration, in sentencing the appellant on the basis that any fine must exceed any potential (or actual or approximate) commercial benefit obtained by the appellant.
2.The learned Magistrate erred in law, or erred in law and in fact, in finding that the commercial benefit to the appellant for the period of the prosecution would have exceeded $500,000.
3.The learned Magistrate erred in law in taking into account, as an aggravating factor for the purposes of s7 of the Sentencing Act 1995 (WA), the fact that 'the development occurred within a cyclone prone area and did not meet cyclone ratings and posed on [sic] ongoing risk to the safety to the residents and to people and property in the immediate area'.
4.The learned Magistrate erred in law in taking into account, as an aggravating factor for the purposes of s7 of the Sentencing Act 1995 (WA), 'the rental loss to the economy of the Town of Port Hedland by housing employees in that manner would impact the community at large.'
5.The learned Magistrate erred in law in concluding that 'general deterrence is required to deter corporate entities from using corporate structures to avoid liability by sale or change of office holders.'
6.The learned Magistrate erred in law by failing to discount by 25% the sentence that she would have imposed if the appellant had been found guilty after a plea of not guilty.[8]
7.The learned Magistrate erred in law by imposing a sentence on the appellant that was manifestly excessive having regard to:
(a)the maximum penalty for the offence;
(b)the place that the offence occupies in the range of seriousness;
(c)the appellant's antecedents; and
(d)the standards of sentences that are customarily imposed for the offence.
[8] As amended with leave at the appeal hearing.

Ground 1

The appellant accepts that one of the matters that a sentencing court is entitled to take into account when assessing the seriousness of an offence is whether the offender benefited financially from the offending. However, the magistrate's apparent elevation of the value of commercial benefit to a minimum threshold for a fine was, it is contended, without foundation and in error.

Sentencing principles and 'commercial benefit'

The starting point as to the principles to be taken into account is the Sentencing Act 1995 (WA). Nothing in s 6 (which set out the applicable principles) or s 7 (which refers to aggravating factors) requires any particular regard to be had to profits or commercial gain from an offence as setting any threshold for penalty.
At their highest, the authorities make clear that commercial benefit is a factor to be taken into account in assessing the seriousness of the offence, the circumstances of the offence and any aggravating factors. It is also appropriate that the level of any fine imposed be assessed bearing in mind the purpose in criminal sentencing of deterrence. The level of any fine should be such that it is not merely seen as a cost of doing business. It should be sufficiently high to deter repetition by the offender.
For example, in Al Hussein v Commissioner for Consumer Protection,[9] McKechnie J said:
The fact that a venture is carried on for commercial reason is relevant. If it is a significantly profitable venture that may be an aggravating factor. There is a need to ensure that the penalty is more than just part of the cost of doing business.
[9] Al Hussein v Commissioner for Consumer Protection [2014] WASC 296 [25]. Similarly, in the regulatory context of pecuniary penalties, profiting from misconduct is an aggravating factor: Australian Competition and Consumer Commission v AirAsia Berhad Company [2012] FCA 1413 [47] (Tracey J).
Therefore, the authorities acknowledge the relevance of the quantum of commercial benefit in the sentencing process but do not elevate its role to in effect providing a minimum level of fine, as implicitly suggested by the learned magistrate.
There are other reasons which reveal the difficulty with the magistrate's approach. First, if the minimum penalty is commensurate with potential commercial benefit, then that benefit must be established, at least approximately. Such task will not necessarily be simple or indeed possible, depending on the particular facts.
Second, in any case where the commercial benefit exceeds the maximum prescribed penalty of $1,000,000, it would follow that (subject to mitigating circumstances) the penalty will be $1,000,000, regardless of the severity or nature of the offence. The maximum penalty is reserved for the worst type of offending.[10] As senior counsel for the appellant submitted, it does not follow from the level of commercial benefit that particular conduct is the worst of its type. The seriousness of conduct cannot be put in the absolute terms of quantified potential commercial benefit. Rather, commercial benefit from offending is but one of the factors to be taken into account in arriving at the single result or 'instinctive synthesis'[11] that is required by the sentencing process.
[10] Markarian v The Queen[2005] HCA 25; (2005) 228 CLR 357 [31]; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.
[11] Markarian v The Queen [37] ‑ [39]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [75].
Third, it is not the purpose of sentencing to disgorge profits (although that result might be met indirectly, or under other legislation). Its purpose, as observed by the majority of the High Court in Veen v The Queen (No 2)[12] is, 'protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform'.
[12] Veen v The Queen (No 2) (476).
The respondent submitted that the magistrate's conclusion should be read merely as her Honour saying that in the particular circumstances of this case, she felt obliged to impose a fine that exceeded the commercial benefit. Her Honour's reasons do not compel me to assume that was her intention. In addition to her conclusion that any fine 'must exceed any potential commercial benefit', her Honour assumes that a sum less than the commercial benefit would be an acceptable operating expense - not just by the appellant in this particular case but by 'any company considering similar development'.[13]
[13] Reasons [48].
I would grant leave to appeal and allow the appeal on this ground.

Ground 2

The second ground of appeal highlights the difficulty with the emphasis placed on commercial benefit by the learned magistrate. The magistrate found that the commercial benefit obtained by the appellant would have exceeded $500,000, based on an assessment of the amount of rental the appellant would have paid in Port Hedland to lease residential properties for some 30 ‑ 35 employees during the relevant period of 243 days. The calculation was put to her Honour by the respondent's counsel by way of submission.
There are three elements to the calculation of $510,000 referred to by the magistrate.[14] First, it assumes a static figure of 30 employees per week. Second, it assumes that the rental market in Port Hedland was such that private rentals to accommodate those employees would have cost $15,000 per week. Third, it assumes that the appellant would have accommodated the employees in such housing, but for the offending use of the property.
[14] Reasons [45].
The appellant contends there was no proper evidentiary foundation for assessing that the appellant had benefitted by in excess of $500,000 from the offending in this case and raises three issues:
(1)there was no evidence as to the number of people occupying the units during the period of the offence. The admission referred to by the magistrate as to there being some 30 ‑ 35 employees was made to officers of the respondent in August 2012, some eight months before the period of the contravention commenced;
(2)there was no evidence that the appellant would have made any of the other commercial gains referred to by the magistrate.[15] The mere potential for such benefits was no reason for the magistrate to assume the benefits would have been received; and
(3)if potential gains were to be taken into account, then so too should potential costs which might have been incurred in providing the units for accommodation: the conclusion was at its highest speculation.
[15] At Reasons [46].
I accept the appellant's submissions as to the second and third matters above and they were not challenged materially by the respondent on appeal.
In answer to ground 2, the respondent points to seven reasons why it says the magistrate's finding as to commercial benefit was properly made:
(1)the number of employees utilising the accommodation during the period of the offence was undisputed;
(2)the cost of residential accommodation in Port Hedland during the period of the offence was undisputed;
(3)the appellant conceded that the offence was commercially motivated;
(4)accommodation on the land was being used by subcontractors to perform contracts for the appellant;
(5)the majority of the period of the offence was within the financial year ending June 2014, during which period the company turnover was $30.6 million;[16]
(6)the purchase price for the appellant company and two other companies when acquired by Qube in July 2014 was $25.1 million;
(7)the appellant was in breach of the provision for a period greater than that the subject of the prosecution notice, so the commercial benefit may have been 'far in excess' of that found by the magistrate.[17]
[16] The magistrate noted that profits were reduced to zero by operating costs and that the true cost of completing contracts was unclear: Reasons [51].
[17] Respondent's outline [13].

It must be remembered that the prosecution must establish an aggravating circumstance beyond reasonable doubt, a matter that was not referred to specifically by her Honour. The principles were summarised by McLure P in Le v The State of Western Australia:[18]
The legal principles relating to fact-finding in sentencing are well-known, deriving in large measure from R v Olbrich (1999) 199 CLR 270. Relevantly for present purposes, they are as follows.
If the prosecution seeks to have the sentencing judge take a matter into account as an aggravating circumstance, it will be for the prosecution to bring that matter to the judge's attention and, if necessary, call evidence about it. If the offender seeks to have the sentencing judge take a matter into account as a mitigating circumstance, it will be for the offender to bring that matter to the judge's attention and, if necessary call evidence about it. It will only be necessary for the prosecution or the offender to call evidence about an aggravating or mitigating circumstances, as the case may be, if the asserted matter is controverted by the other party or if the sentencing judge is not prepared to act on the assertion, even though it is not controverted by the other party. See Olbrich [25].
The sentencing judge is obliged to give notice to the offender if the judge is not prepared to act on an alleged mitigating circumstance which is asserted by the offender and not controverted by the prosecution or otherwise. See Law v The State of Western Australia [2009] WASCA 193 [25] - [34].
The prosecution must establish an aggravating circumstance beyond reasonable doubt but the offender is only required to prove a mitigating circumstance on the balance of probabilities: Olbrich [27].
[18] Le v The State of Western Australia [2015] WASCA 73 [16] ‑ [19]; also PAS v The State of Western Australia [2009] WASCA 210 [97]; The State of Western Australia v JWRL (a child) [2010] WASCA 179 [10].
At the sentencing hearing, the respondent's counsel provided copies of a document called 'Pilbara Residential Housing and Land Snapshot' for the quarter ending March 2014 (Snapshot).[19] Counsel calculated what he referred to as, 'a saving, potentially, of $525,000' by submitting that 30 persons would require 10 three bedroom houses and, according to the Snapshot, the average rental for a three bedroom house was $1,563 per week. The cost of $15,000 per week must be multiplied by the 35 week prosecution period. It was submitted that, according to the Snapshot, there was availability or at least an increase in availability for housing.[20] The use of the information in the Snapshot is premised on an appropriate evidentiary foundation as to the number of employees to be accommodated over the period and where and how they would have been accommodated.
[19] The Snapshot was not formally tendered at the sentencing hearing, but was provided to me with the consent of the appellant following the appeal. The appellant does not challenge the information contained within the Snapshot.
[20] ts 19.
The respondent's counsel submitted that he raised the number of employees before the magistrate, and the appellant's counsel[21] did not take issue with the asserted fact and accordingly was properly understood to have agreed with it.[22]
[21] The appellant's counsel on the appeal, Mr Vandongen SC, was not counsel on the sentencing hearing.
[22] Appeal ts 49; Respondent's outline [10], [11.4].
During his oral statement of facts before the magistrate, the respondent's counsel said:[23]
In August of 2012, officers of the town met with Mr Stanton and Mr Stanton confirmed the accommodation was being used by employees of his group of companies and he requested more time to relocate the accommodation. Mr Stanton said approximately 30 to 35 employees were using the accommodation at any one time and the company was hoping to relocate the accommodation to a mining tenement in early 2013.
[23] ts 10.
Nothing further was said on the point during the statement of facts.
Later in the hearing when making sentencing submissions, the respondent's counsel said:[24]
Despite that [Mr Stanton being on notice that the use was unlawful], the company continued to use the land unlawfully to accommodate 30 to 35 employees at any one time.
[24] ts 18.
Respondent's counsel submitted at the hearing before me that submissions may also raise statements of fact. Although for the purpose of sentencing, facts and propositions that are not contentious can be put informally,[25] it is important that facts are put clearly so that they can be considered and contested as appropriate on behalf of the offender. If facts are not raised squarely, a failure to challenge them cannot be taken safely as acceptance, particularly when the prosecution is relying on such facts in asserting that a circumstance is aggravating.
[25] The State of Western Australia v JWRL (a child) [10].
I do not consider it was raised squarely that the prosecution was asserting as a fact that the appellant housed 30 ‑ 35 employees throughout the period of the offence. There was no other evidence to that effect. In those circumstances I do not consider that the appellant can be taken to have accepted what was said as to the number of any employees continuing to be housed.
In the circumstances, the respondent did not discharge its onus to prove that fact upon which it relied.
Even leaving aside the question as to the number of employees, there was no evidence that the appellant, had it not been for the units on site, would have rented and paid for private accommodation for the employees in Port Hedland. It is not clear that the appellant would have continued to employ the same number of employees. There may well have been other options for travel or accommodation. The issue was not canvassed to a sufficient extent that an inference as to the requirements and alternate costs of accommodation as calculated could safely be drawn. At its highest, the evidence established no more than that the appellant, if it retained 30 ‑ 35 employees on site, would have been able to accommodate them in Port Hedland in private rental accommodation at market rates if it chose to do so.
It can be assumed safely that there was some commercial benefit by way of rental or travel saving to the appellant. The appellant admitted so much. But the evidence was not such as to elevate the calculation of $510,000 to a sound foundation for a finding beyond reasonable doubt that a commercial benefit of at least that amount was received.
I add that the magistrate enquired of the appellant's counsel at the hearing as to the use to be made of the respondent's calculation. Based on the transcript, the response was incomplete, with counsel noting it would be unlikely that employees would be housed other than in dongas, but with the dialogue between counsel and the magistrate then shifting to the topic of the scope to recognise the role of the former director as against that of the appellant.[26] I do not read into the limited exchange a concession that the calculation was accepted as evidencing acceptance of either the number of employees or the quantum of commercial benefit. Counsel for the respondent rightly acknowledged before me that the exchange before the learned magistrate was equivocal.[27]
[26] ts 43.
[27] Appeal ts 52.
There was scant evidence as to any commercial benefit said to flow from the alleged use of the property by subcontractors. The respondent's submission at its highest was that the people housed on site were performing work for the appellant and that there must have been some benefit to the appellant in housing them on site or it would not otherwise have done so. The respondent's counsel accepted during the appeal hearing that it was difficult to point to any evidence of direct financial gain.[28]
[28] Appeal ts 53.
As to the financial information referred to by the respondent, the magistrate referred to such information only insofar as she found that the appellant was in a financial position to pay any fine.[29] The respondent's ability to pay a fine was not in issue: 'the underlying entity will accept responsibility'.[30] The magistrate did not rely on the financial information as evidencing commercial benefit. At the appeal hearing, the tenor of the respondent's argument was that because of the alleged strong financial position of the respondent, then any fine needed to be high to make an impact on the appellant. That may be relevant to the issue of specific deterrence, but does not establish commercial benefit. Counsel for the respondent properly accepted that the financial information was such that it was not possible to discern from it the extent of any commercial benefit flowing from the offence.[31]
[29] Reasons [49] ‑ [52].
[30] Reasons [49].
[31] Appeal ts 53.
Having taken into account the various submissions of the parties, I do not consider there was sufficient evidence from which the learned magistrate could properly conclude that the commercial benefit to the appellant flowing from the offence would have exceeded $500,000.
I would grant leave to appeal and allow the appeal on ground 2.

Ground 3

The magistrate said that she took into account as an aggravating factor:[32]
The development occurred within a cyclone-prone area and did not meet cyclone ratings and posed [an] ongoing risk to the safety of the residents and to people and property in the immediate area.
[32] Reasons [15f].
The evidence at its highest was a statement made at the sentencing hearing that the respondent had concerns that the units were not adequately secured and would present a danger in the event of a cyclone or high wind event.[33] Counsel for the respondent submitted that based on the respondent's 'concern', it was open to the magistrate to look behind that concern to find as an aggravating factor that the buildings were unsafe.[34] I do not accept that submission. There was no evidence before the magistrate that the units did not meet cyclone ratings. At the most, there was evidence that the respondent had concerns about safety in the event of a cyclone or high wind event. I do not consider it was reasonably open to find on the very limited evidence that the units were unsafe or did not meet cyclone ratings, particularly taking into account the burden of proof.
[33] ts 10.
[34] Appeal ts 55.
I grant leave and allow the appeal with respect to ground 3.
I should add that I have considered whether of itself, such error may not have resulted in any miscarriage of justice within the meaning of s 14(2) of the Criminal Appeals Act 2004 (WA) such that I ought to dismiss the appeal on this ground. However, the matter was considered aggravating by the magistrate. It is therefore a matter to which, I infer, the magistrate gave some weight in the sentencing process. I cannot be satisfied that regardless of that alleged circumstance, the magistrate would have formed the same view as to the sentence to be imposed. Therefore, I would allow the appeal on this ground.

Ground 4

Whether or not the offence resulted in any impact on the Port Hedland economy was really a matter of inference, and involved a degree of speculation. There was no evidence to that effect. It is unclear whether rent which might otherwise have been paid by the appellant would have been paid to lessors working or residing in Port Hedland. Other arrangements for workers may well have been made. Some may have been flown in or the work force reduced. The prosecution did not submit at the sentencing hearing that potential rental loss to the community was an aggravating factor. With respect to her Honour, there was an insufficient foundation from which to infer that there was such impact on the town and to then treat it as an aggravating circumstance.
I would grant leave to appeal on ground 4 and allow the appeal. As with ground 3, I have considered the operation of s 14(2) of the Criminal Appeals Act but do not consider I ought to dismiss the appeal on this ground for the same reasons.
Counsel for the appellant also submitted that the circumstance ought not properly be considered aggravating in any event. In light of my conclusion as to this ground it is not necessary to determine this question, but I note that the general purpose of both the Planning and Development Act and schemes under that Act relates to matters such as efficient and effective land use planning and the sustainable use of land.[35] It is not concerned directly with the broader question of the economy of a town or potential rental streams to land owners. As to identifying aggravating circumstances, in Longbottom v The State of Western Australia[36] Wheeler JA said as follows:[37]
There is in s 7 and s 8 [of the Sentencing Act] some limited degree of statutory guidance concerning the matters which may, or must, or must not, be considered to be aggravating or mitigating, but in general terms the identification of aggravating and mitigating factors is to be made in accordance with the statutory provisions creating the relevant offence and with the principles of the common law.
[35] See, for example, sections 3 and 69 of the Planning and Development Act.
[36] Longbottom v The State of Western Australia [2008] WASCA 203; (2008) 38 WAR 203.
[37] Longbottom v The State of Western Australia [39].
In my view, the potential loss of rental flow to other landowners who may or may not reside within the town is not sufficiently associated with the purpose of the legislation or the offence to be considered properly an aggravating factor. That is not to say that there will not be other circumstances where a particular economic effect on the local economy or third parties might be considered aggravating.

Ground 5

The statement the subject of ground 5 must be viewed in context. The magistrate was responding to a submission that the role of general deterrence in sentencing in this matter was limited because, it was alleged, the breach occurred when the controlling mind of the company was Mr Stanton and not current management. Current management had ensured the units were removed and the appellant had pleaded guilty to the charge. The magistrate, who had already found that general deterrence from breaching development policies was the most significant factor in sentencing for the offence,[38] found that the change in control did not obviate the need for general deterrence.
[38] Reasons [35].
Declining to take into account general deterrence in such circumstances would run counter to general deterrence principles in that company officers, in assessing whether a fine was an acceptable cost of business, might assume that by changing the corporate structure they can reduce the quantum of a fine that may otherwise be imposed. The incentive to avoid offending may be reduced.
In this case, the magistrate rightly noted the role and importance of general deterrence in setting the level of a fine and, based on her reasoning, rightly considered there remained a role for general deterrence despite a corporate restructure. The conclusion as expressed in her Honour's reasons was put too broadly. There is no additional obligation to take into account deterrence of corporate restructures generally.
However, in light of the context, I am not persuaded that the magistrate intended to suggest there was an overarching obligation to take into account general deterrence of corporate restructures. Therefore, I do not consider the sentence would have been any different had the conclusion not been reached as expressed, and accordingly there was no substantial miscarriage of justice with respect to this ground.
I would grant leave to appeal but dismiss the appeal on this ground.

Ground 6

After noting that the appellant had no history of similar offending, the magistrate dealt with the issue of the early plea. The appellant pleaded guilty at the start of a two day trial, having informed the court a week beforehand that it intended to do so. Earlier trial dates were vacated because the appellant required additional documents. The magistrate noted that the respondent was compensated by an agreed costs order but that minimal court time was saved by the plea. Her Honour then said:[39]
A plea was entered within a reasonable time after relevant documentation had been obtained by summons and a full discount of 25% on any penalty to be imposed is appropriate.
[39] Reasons [25].
The magistrate then imposed the fine of $600,000.
The appellant contends that the magistrate failed to apply the 25% reduction she had foreshadowed. It says the magistrate must have failed to do so based on two approaches.
First, the appellant contends that if it was applied, the starting point for the fine must have been in excess of $800,000. Based on a fine of $600,000, the starting point must have been in excess of $800,000 because in addition to allowing for the 25% discount foreshadowed for the guilty plea, the magistrate had noted the mitigating factor of it being a first offence. The appellant says the starting point for the fine could not have been in the order of $800,000, because although the magistrate had foreshadowed that the fine was to exceed the alleged commercial benefit, there was no suggestion the offence was of sufficient seriousness to attract a penalty exceeding $800,000.[40]
[40] Appeal ts 33 ‑ 37.
The second point made by the appellant is that having concluded that the fine must exceed $510,000, and allowing for some other potential benefits as assumed by the magistrate, if the starting point for sentencing was in fact $600,000, then there is not room for a discount of 25% to have been applied.[41]
[41] Appeal ts 36 ‑ 37.
The respondent contends that the starting point must have been in excess of $800,000, and justifiably so, and the 25% discount was then applied.
The magistrate was not obliged to set out her starting point. Care must be taken as to what can be inferred as to starting points from the reasons for decision. It is only necessary for a sentencing court to have taken into account the relevant factors which it was required to do so, as part of the intuitive synthesis of all of the relevant circumstances of the case.[42] Aside from any statutory requirement such as that created by s 9AA(5) of the Sentencing Act, the sentencing court is not required to state the starting point or express the amount of discount for a particular factor.[43]
[42] Markarian v The Queen [27].
[43] Sinclair v The State of Western Australia [2014] WASCA 22 [48]; Fullgrabe v The State of Western Australia [2006] WASCA 138 [19]; KAT v The State of Western Australia [2017] WASCA 11 [32] ‑ [33], [38] (Buss P), [92] ‑ [96] (Mazza JA), [116] (Corboy J).
I do not infer from her Honour's reasons that the discount was not applied. The magistrate concluded that the fine must exceed the commercial benefit but there is nothing in her reasons that indicates that she considered herself constrained to impose a fine that exceeded that sum only by a particular amount. Rather, the magistrate appears to have considered the level of alleged commercial benefit as a minimum threshold for the fine, for the reasons discussed with respect to grounds 1 and 2.
Therefore, I infer that but for the discount and but for the fact that it was a first offence, the fine would have been significantly higher and at least $800,000. Whether or not the sentence was manifestly excessive is addressed by ground 7.
It follows that I do not consider the magistrate failed to apply the 25% discount she had foreshadowed and I would refuse leave with respect to ground 6. It follows that the appeal is dismissed as to that ground.
There was some debate during the appeal as to whether the magistrate in referring to what she described as the 'full discount of 25%'[44] was referring to s 9AA(4) of the Sentencing Act, and so assumed that s 9AA(4) applied in the case of a fine to limit a discount to 25% for a guilty plea.
[44] Reasons [25].

In CE Oates & Son Pty Ltd t/as Narrogin Retravision v Balla,[45] Kenneth Martin J considered that as a matter of construction, s 9AA(4) appears to apply only to a sentence of imprisonment,[46] a conclusion with which I respectfully agree.
[45] CE Oates & Son Pty Ltd t/as Narrogin Retravision v Balla [2015] WASC 144.
[46] CE Oates & Son Pty Ltd t/as Narrogin Retravision v Balla [44] ‑ [48]; and see Evans v Richards [2015] WASC 53 [38] ‑ [39] (McKechnie J) to the same effect.
The question is not relevant on this appeal: the magistrate was entitled to apply a discount for the guilty plea. If, as explained in CE Oates, s 9AA(4) does not apply to a sentence by way of fine, then in any event the magistrate was entitled to discount the fine by 25% as the level of discount is not otherwise proscribed. The appellant does not contend the magistrate wrongly considered herself constrained to a discount of 25%.

Ground 7

General principles

A claim that a sentence is manifestly excessive rests on implied error. It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[47]
[47] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).
In order to assess whether a sentence is manifestly excessive, it is necessary to consider the maximum penalty, the standards of sentencing customarily observed in relation to offences of this character, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, the personal circumstances and antecedents of the offender and all aggravating and mitigating circumstances.[48]
[48] Sentencing Act 1995 (WA), s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Mack v The State of Western Australia [2014] WASCA 207 [194] (Buss JA, Martin CJ & Mazza JA agreeing); Beydoun v City of Stirling [2015] WASC 25 [155].
The purpose of planning controls and offences was identified in Swan Bay Holdings Pty Ltd v City of Cockburn:[49]
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.
[49] Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 [74] (Hasluck J).
As referred to above in the context of grounds 1 and 2, the level of a fine should also be such as to make the offending commercially unattractive.[50]

Maximum penalty

[50] Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87 [48] (Murray J) (Able Lott Holdings [2011]); Al Hussein v Commissioner for Consumer Protection.

The maximum penalty for an offence committed under s 218(a) of the Planning and Development Act is $200,000 and, in the case of a continuing offence, the court may impose a further fine of up to $25,000 for each day during which the offence continues.[51] By s 40(5) of the Sentencing Act, where an offender is a body corporate it is liable to a fine of five times the maximum fine that could be imposed on a natural person. Therefore, in this case the maximum fine for the offence is $1,000,000 with a potential daily fine of up to $125,000.
[51] Planning and Development Act 2005 (WA), s 223.
The maximum penalty for a breach of s 218(a) by a natural person was increased on 3 March 2011 from $50,000 and a daily fine of $5,000 by an amendment to s 223 of the Planning and Development Act. The section was amended by the Heritage and Planning Legislation Amendment Act 2011 (WA).
In JKL v The State of Western Australia,[52] Murphy JA explained the proper regard to be given to an increase in the maximum penalty for an offence:
An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31]; Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [133]; Sentencing Act 1995 (WA), s 6(2)(a). It requires the court to regard offences of that kind more seriously in the future: The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [35]. It is the duty of the court to give effect to the policy behind the change: Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89 at [35].
[52] JKL v The State of Western Australia [2012] WASCA 215 [98]. See also Markarian v The Queen [30] (Gleeson CJ, Gummow, Hayne & Callinan JJ).
It is therefore useful to consider the policy behind the change in the penalty.
The purpose of the Heritage and Planning Legislation Amendment Act was described in the Explanatory Memorandum as:
[To] increase the penalties for offences in respect of heritage places in Western Australia to provide a meaningful deterrent to illegal conduct.[53]
[53] Explanatory Memorandum, Heritage and Planning Legislation Amendment Bill 2010, 17 November 2010, 1.
However, as to the proposed amendments to s 223 of the Planning and Development Act, it was noted that:[54]
These penalties will apply to any unauthorised work to any place, whether or not it is a heritage place.
[54] Explanatory Memorandum, 3.
The Minister for Heritage in his second reading speech focussed on the value of heritage buildings. He said:[55]
Our state heritage legislation is now outdated. In particular, the fines that can be imposed for damaging or demolishing heritage places have not kept up with the rapid increases in land prices. The Heritage of Western Australia Act provides that a maximum fine of only $5,000 applies for damaging or despoiling a place listed in the Register of Heritage Places. Unauthorised development or demolition is subject to a maximum fine of $50,000 under the Planning and Development Act. These fines are too low compared with the market value of an empty block.
Members of this house may remember the outrage at the unauthorised demolition in 2007 of a local heritage place at … Claremont. Whereas the maximum fine for this offence would have been only $50,000, the land has since been subdivided into three lots, which are each worth over $1 million. Our current fines are hardly a deterrent. Indeed, an owner could see fines as merely a cost of doing business, and a rather small cost at that.
…
A conservation order can be put in place by the minister when he or she believes it is necessary or desirable to provide special protection under section 59. These provisions rely on the minister being made aware that special protection is required in advance of any damage being done. Without a conservation order, the penalty for damaging or despoiling a place listed in the Register of Heritage Places is a maximum fine of $5,000. In addition, a person who has not obtained the necessary planning approvals from a local council is liable to a maximum fine of $50,000 under the Planning and Development Act 2005. These fines are inconsequential and send the wrong message.
…
Increasing the penalties sends a message to the community that this state and this government values its heritage.
[55] Second Reading Speech, Heritage and Planning Legislation Amendment Bill 2010, 24 November 2010.
Based on the Minister's comments, one might assume that the clear target of higher fines were offenders who made a commercial call to demolish heritage listed buildings. However, neither s 218 nor s 223 distinguish between offences relating to heritage buildings and other circumstances of offending.
The effect of the increase was discussed by Fiannaca J in Caruso v Shire of Augusta ‑ Margaret River,[56] who considered (having also referred to the second reading speech) that the increases were intended to reflect that all planning offences under s 218 are to be regarded more seriously, and not just those at the higher end of wrongdoing:[57]
There was an expectation in the present case, therefore, that the penalty imposed for the planning offence would reflect the intention of parliament that the offence be regarded as more serious than it might have been before the 2011 amendment, and that it be a deterrent penalty that would not be seen merely as a cost of doing business. In my opinion, fines imposed before the 2011 amendment for similar offending will no longer be suitable comparators unless allowance is made for the expectation of a heavier penalty for offending of a particular seriousness.
[56] Caruso v Shire of Augusta ‑ Margaret River [2016] WASC 379.
[57] Caruso v Shire of Augusta ‑ Margaret River [99].
I respectfully agree with Fiannaca J's summary of the effect of the change to the penalty and the approach that should be taken.

Seriousness of the offence

The appellant accepts that the offence was serious. It did not challenge five of the matters referred to by the magistrate as aggravating: that is, the period of the offending the subject of the prosecution (243 days), that no relevant approvals were sought, that approvals for the use would not in any event have been granted, that the development did not meet basic requirements of residential development as the area remained unsealed and that a septic system was installed without approval. The offending continued despite the request by the respondent to relocate the units and after proceedings were commenced, albeit against the wrong party. The appellant's then director was aware of the proceedings.
The appellant always accepted that there was commercial benefit.[58] For the reasons given above, the level of that benefit was unclear and the extent of occupation of the premises by employees (whether employed directly or indirectly) was also unclear. But the appellant did not deny the offending involved commercial benefit.

Mitigating factors

[58] Appeal ts 40.

The appellant points to the lack of any prior conviction for such an offence and the early guilty plea, consistent with the matters expressly referred to by the magistrate.

Standards of sentences customarily imposed

Both counsel referred to the usual reasons as to why care must be taken with comparative analyses. Those reasons are detailed elsewhere.[59] In short, care must be taken because planning offences occur in a range of circumstances, including demolition, construction, residential and commercial buildings and unauthorised use of residential or commercial land. Offences may be committed by natural persons, corporate entities or both, potentially with a different penalty regime depending on the date of the offence.
[59] See, for example, Paolucci v Town of Cambridge [2013] WASC 50 (Edelman J); Goddard v City of Stirling [2009] WASC 28 [17] (EM Heenan J); Caruso v Shire of Augusta ‑ Margaret River [127] ‑ [134].
There have been a number of appeals to this Court in relation to sentences for s 218 offences. Detailed reviews were undertaken by both Pritchard J in Beydoun v City of Stirling[60] and Edelman J in Paolucci v Town of Cambridge.[61] The appellant provided a schedule of cases where sentences for breaches of s 218(a) of the Planning and Development Act were considered. The appellant's counsel acknowledged the limitation on its value. However, the following cases from the schedule, set out chronologically, provide some context.

Examples prior to increase in penalty

[60] Beydoun v City of Stirling [157] ‑ [180].

[61] Paolucci v Town of Cambridge [64] ‑ [98].

In Dodd and Dodd Pty Ltd v Shire of Mundaring,[62] the offender used land as a salvage/wreckers yard, for the purposes of a substantial commercial business. That use was not permitted under the applicable town planning scheme. The offender had two prior convictions for planning offences and had advanced an untenable defence. The company was fined $120,000 plus a daily penalty of $100 per day for 288 days, resulting in a total fine of $148,800. An appeal against that sentence on the ground that it was manifestly excessive was dismissed.
[62] Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37.
In Swan Bay Holdings Pty Ltd v City of Cockburn,[63] the offender pleaded guilty at the commencement of the trial to of a breach of s 218(a) by carrying out a development without planning approval. The breach occurred over a period of some 12 months.[64] It included the levelling, compacting and sealing of the land, building of hard stands and the construction of fences, a central roadway and buildings in order to use the land for storage yards and transport depots. Retrospective approval for the development was sought and given. The company was fined $150,000. An appeal against that sentence on the ground that it was manifestly excessive was dismissed. Hasluck J noted that the mere fact that retrospective approval was granted was not on the facts of the case a mitigating circumstance:[65]
Finally, I am of the view that the presence of the retrospective approval and the fact (as evidenced by the approval) that the development could be regarded as a permitted use within the light industrial area cannot be treated as a mitigating factor weighing so decisively in favour of the appellant that it displaced the need for a significant penalty.
…
[I]t would be misguided to allow certain unauthorised developments to proceed with scarcely any censure simply because they were thought to be compatible with the zoning because this would reduce planning approvals to the level of a mere formality. Moreover, in such a case the tendency to non-observance can be insidious because, as indicated by the circumstances of the present case, the unauthorised work may pass unnoticed.
…
[T]he failure to apply prospectively subverted the council's authority to control the approval process.
[63] Swan Bay Holdings Pty Ltd v City of Cockburn.
[64] Swan Bay Holdings Pty Ltd v City of Cockburn [4].
[65] Swan Bay Holdings Pty Ltd v City of Cockburn [74] ‑ [75], [84].
In Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda,[66] the offender was convicted of a breach of s 218(a) by using land for parking commercial vehicles without approval. The breach was described as a 'large scale operation … conducted with a flagrant disregard' for the requirement for planning approval, and for which the company had shown no remorse. The company was sentenced to a fine of $100,000 plus a daily penalty for 169 days, resulting in a total fine of $116,900. An appeal against the sentence was dismissed.
[66] Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234.
In Able Lott Holdings [2011], the offender ultimately pleaded guilty to one breach of s 218(a) of the Planning and Development Act and two breaches of the Local Government (Miscellaneous Provisions) Act 1960 (WA) arising from development works it carried out to a heritage building in Fremantle. They were first offences. The work was conducted without the approvals required by the relevant scheme and so was in breach of s 218(a). The building work also proceeded without a building licence and approvals required under the Local Government (Miscellaneous Provisions) Act and in contravention of a stop work notice issued under that same Act. The penalty imposed in respect of the s 218(a) offence (said to be the most serious offence) was a fine of $100,000 and a daily penalty of $500 per day for 162 days, being a total fine of $181,000.
The magistrate viewed the offences as involving a brazen and deliberate attempt to circumvent limitations which applied to it with respect to an old building. The magistrate found that the development was conducted for the appellant's commercial convenience and benefit and that a significant deterrent penalty was warranted. An apartment was constructed behind the preserved façade which was higher than as approved, having the effect of overhanging the original parapet wall and failing to blend with the heritage listed façade.[67] The offender made further unapproved changes such that a greater intensity of use was involved in the as‑constructed building than had been approved.[68] Counsel said that the council's power to require demolition of the unauthorised work was unlikely to be used because of the heritage status of the site. The appellant hoped the council would submit to what was in effect a fait accompli.[69]
[67] Able Lott Holdings [2011] [34].
[68] Able Lott Holdings [2011] [36].
[69] Able Lott Holdings [2011] [17].
Murray J dismissed an appeal against the sentence, concluding that the magistrate was right to find that the conduct constituted serious offending, and that the sentence was not manifestly excessive. An appeal against his Honour's decision was also dismissed.[70]
[70] Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39.
In a second prosecution of Able Lott arising out of the same development, Able Lott Holdings Pty Ltd v City of Fremantle,[71] the appellant was convicted after trial of four offences, two being breaches of s 218(a) of the Planning and Development Act. The appellant appealed with respect to each of the charges. Relevantly, the sentence imposed for each of the two s 218(a) breaches was a fine of $75,000 plus a daily penalty of $250 per day for 148 days, being a total of $112,000 for each offence.
[71] Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 (Able Lott Holdings [2012]).
The work undertaken was less substantial than in respect of the previous offences, but the fact that the appellant had previously been prosecuted in respect of the same development was clearly aggravating. The development involved intensive land use to build a number of multi‑storey units with intended use as short term accommodation and carried the potential for commercial benefit. The appeal was dismissed, Hall J finding that although the total penalty imposed was high, it reflected the deliberate disregard of the planning laws and was a realistic deterrent.[72]
[72] Able Lott Holdings [2012] [73] ‑ [77].
In Teissier v City of Rockingham,[73] an individual with no prior offences was convicted following a trial of one offence of a breach of s 218(a) by developing land without approval. The offence was committed when over a period of six months the offender caused approximately 250 truckloads of soil and sand to be delivered to his property, which was a livestock holding facility. The addition of the soil raised the natural ground level of the property, which was prone to flooding. Prior to the commission of the offence he had been warned that he required planning approval to undertake the landfill, and despite that warning he chose to continue, and only sought retrospective planning approval once the landfill was completed. He was fined a single fine of $15,000 for that offence. On appeal, Le Miere J concluded that the fine was not manifestly excessive in the circumstances.

Examples after increase in penalty

[73] Teissier v City of Rockingham [2014] WASC 158.

In Chong and Success Australia Group Pty Ltd v City of Mandurah,[74] a company and its director, Mr Chong, were convicted of two offences under s 218(a) of using land for accommodation by running a massage business without approval, and for the display of a sign without approval. Mr Chong was fined $25,000 plus $1,500 in daily penalties for the accommodation offence and a total of $2,750 in respect of the signage offence. On appeal, Edelman J set aside Mr Chong's penalty as to use on the basis that it was manifestly excessive, largely having regard to the fact that the total fines imposed amounted to more than a quarter of Mr Chong's total assets, and that the company was the principal offender. Mr Chong was resentenced to a fine of $5000. The company had been fined a total of $52,500 for the accommodation offence and $8,250 for the signage offence. The company's appeal from the sentence on the ground that the fines were manifestly excessive was dismissed.
[74] Chong v The City of Mandurah [2013] WASC 470.
In Chen v City of Stirling,[75] Ms Chen and her ex‑husband were each convicted of carrying out a development of land without approval contrary to s 218(a), in that they were operating a brothel from the premises, a prohibited use under the applicable town planning scheme. The appellant ignored a request from the respondent that the use of the premises must cease. The offence involved a flagrant breach of the planning approvals process. Ms Chen was described by the magistrate as a silent partner in the business, but one who was aware of the respondent's concerns and did nothing. She committed the offence motivated by commercial considerations. Each offender was sentenced to a fine of $20,000 and a daily penalty of $50 per day for 332 days, being a total fine of $36,600 each. On appeal, Le Miere J concluded that that fine was not manifestly excessive in the circumstances.
[75] Chen v City of Stirling [2014] WASC 183.

In Taylor v City of Kwinana,[76] a property had been cleared and levelled and was being used to store heavy machinery such as trucks and mining equipment without approval and contrary to s 218(a). The appellant continued to use the property for almost 18 months despite being put on notice of the offence. A penalty of $30,000 and a daily penalty of $50 per day for 162 days was imposed ($8,100), being a total of $38,100. The appeal was dismissed.
[76] Taylor v City of Kwinana [2015] WASC 252.
I note that Teissier, Chen and Taylor involve sentences given to individual persons. I have referred to them, however, as they relate to use of land. Further, as to Chen and Taylor, the sentences were imposed after the maximum penalty was lifted to $250,000 and a daily maximum penalty of $25,000 per day. The fine in Taylor was the higher, at $38,100.
In summary, the total fines imposed on the corporate offenders for the s 218 offences considered above were Dodd and Dodd ($148,800, 288 days); Swan Bay Holdings ($150,000); Pavlinovich Bulk Transport ($116,900, 169 days); Able Lott Holdings [2011] ($181,000, 162 days); Able Lott Holdings [2012] (two offences, total $224,000, 148 days); and Chong (two offences, total $60,750).
Against that backdrop, it can be seen that the sentence imposed in this case is, to use counsel for the appellant's phrase, 'the outlier'. However, it is to be acknowledged that there is very little guidance by way of cases determined by this Court as to fines imposed on corporate entities following the 2011 increase in penalties.
The respondent's counsel submitted that this is, 'the most determined and flagrant offence of this type to ever come before the Court'.[77] Counsel referred only to Swan Bay Holdings by way of analogy, submitting that in that case a penalty of 60% of the (old) maximum was imposed, and so similarly a fine of 60% of the (new) maximum penalty (as was imposed) is appropriate in this case. It was said that the aggravating circumstances of this case were worse in that the offence continued for a longer period and the use could never have been approved, whereas in Swan Bay Holdings retrospective approval was obtained.

Determination as to manifest excess

[77] Respondent's outline [37], and distinguishing 'use' cases.

For the reasons which follow, I conclude that the sentence imposed on the appellant was manifestly excessive.
The commercial benefit was presented as a saving of rent. This contrasts with the commercial exploitation of land by unauthorised demolition or a large scale commercial development from which a developer was expecting significant profits from on‑sale.
This is a case where the unapproved use could cease with, it would seem, no ongoing damage to the land. The mischief was easily remediable. This contrasts with many construction cases where irreparable damage is done by demolition or renovations, or circumstances where there are established health and safety risks or such wider impact. The potential distinction between breaches involving unapproved use of land and construction offences was noted in Caruso v Shire of Augusta ‑ Margaret River.[78]
[78] Caruso v Shire of Augusta ‑ Margaret River [134].
I consider the circumstances of this offence to be less serious in nature than some of the construction cases, particularly those involving demolition or unauthorised renovations which carry safety risks. More particularly, I consider the circumstances in this case to be less serious than in the first Able Lott Holdings prosecution, where the offender left an impact on a heritage site and, as a property developer, stood to make substantial profit from the development. Complete demolition of a heritage building may be even more serious.
As to Swan Bay Holdings, I accept that there are some similarities but I do not accept that the circumstances of this offending are 'far worse' than those in Swan Bay Holdings. I do not consider that the distinctions as to aggravating circumstances relied upon by the respondent are of any great weight. In Swan Bay Holdings, the period the subject of the prosecution notice was some 12 months: it is less in this case. Although the use by the appellant in this case could not have been approved, the capacity to obtain retrospective approval in Swan Bay Holdings was considered of little value. The effect on the land occupied by the appellant in this case could be remedied easily by the removal of the units. In Swan Bay Holdings, substantial works were undertaken to the land. Nor do I consider the respondent's approach of scaling earlier penalties by applying the equivalent percentage of the former penalty to the current maximum penalty properly reflects the discretionary task to be undertaken in assessing a penalty.
In the end, I consider that the circumstances of the offending share some similarity with the circumstances of Swan Bay Holdings, the offending is not as serious as that in Able Lott Holdings [2011] but is considerably more serious than that in Chong. There are also some similarities with Taylor. However, as has been said in many of the cases dealing with s 218, the circumstances are all different and make any true comparison impossible.
I accept that the appellant's offending was serious and involved commercial benefit. I take into account that the intention of Parliament in increasing the maximum penalties in 2011 was that offences contrary to s 218 were to be taken more seriously.
I do not consider the circumstances of this offence require a sentence set towards the maximum penalty available. One can readily imagine worse cases (demolition of a heritage building, other conduct that by its nature cannot be remedied, use of land that has a significant health or safety impact on those in the vicinity, repeated significant offences despite prior successful prosecutions, use that impacts on the amenity of others, building a greater number of apartments than approved on a site).
In my view, a sentence of $600,000 for one offence after the mitigating circumstances are taken into account is a significant outlier and is manifestly excessive. I would grant leave to appeal on ground 7 and allow the appeal.

Resentence

With respect to grounds 1 ‑ 4, even where there is an error of fact or law, the jurisdiction of the court to resentence an appellant will not be enlivened unless the error is material to the exercise of the sentencing discretion.[79] Counsel for the appellant referred to the question of materiality:[80] although there is a question as to whether for an appeal under pt 2 of the Criminal Appeals Act (as against pt 3) there is a requirement that any error as referred to in s 8(1)(a)(i) be material before the appellate court's jurisdiction is enlivened,[81] I consider the errors to be material in any event.
[79] House v The King (1936) 55 CLR 499, 504 ‑ 505; Harding v The State of Western Australia [2015] WASCA 27 [36] ‑ [40], [73] ‑ [74]); Roberts v The State of Western Australia [2014] WASCA 239 [48]; Rowsell v The State of Western Australia [2015] WASCA 2.
[80] Appeal ts 23.
[81] Ninyette v Holmes [2015] WASC 287 [65] (Mitchell J); Winmar v Clark [2015] WASC 314 [29] ‑ [30] (Martino J).
More to the point, I have found that the sentence was manifestly excessive and so it follows that the appellant is to be resentenced.
Again, I take into account that the offence is serious and that there was a commercial benefit from the offending, a circumstance that is accepted by the appellant to be aggravating.[82] It does not matter that I am unable to assess the likely level of commercial benefit. It remains an aggravating circumstance.
[82] Appeal ts 13 ‑ 14.
I also take into account the other circumstances found to be aggravating by her Honour and not challenged on this appeal. The appellant continued to use the property for a residential purpose by utilising the transportable units for a long period of time and despite being put on notice that they were to be removed. No real explanation for its conduct was provided.
I also take into account that there is no evidence that the use adversely affected the amenity of others[83] or impacted on the wider environment.[84]
[83] Nugent v City of Bayswater [2017] WASC 25 [67].
[84] Caruso v Shire of Augusta-Margaret River [211].
As to mitigating circumstances, I take into account the plea of guilty. In addition to saving hearing time, court resources were saved in that contested liability did not need to be determined. There are cost saving benefits to the respondent together with the benefit of certainty of outcome as to liability. I would reduce the fine to be paid by 25%.
I allow a further reduction to take account of the fact that the appellant has no history of similar offending.
I do not consider that the real objective in this particular case is to provide for specific deterrence. There is no suggestion that the appellant's new owners and managers intend to ignore the appellant's obligations under the Planning and Development Act. The real objective is to properly sanction the appellant and provide for general deterrence. The appellant has financial resources and so a modest fine may be of little impact. The penalty must also be sufficiently high to act as a disincentive to others.
Whilst I am not bound by the respondent's decision below to decline to seek a daily penalty, I consider it appropriate to act consistently with the approach of the magistrate on that issue. Accordingly, I propose to impose a single fine of a level which I consider meets the sentencing objectives in this case. A substantial fine is justified and can apparently be met.
There are no considerations under s 53 of the Sentencing Act to be taken into account, as the appellant has not suggested it is unable to pay a fine.
I consider the appropriate starting point is the sum of $400,000. That is a significant sum that reflects that the offence requires a heavier sentence than would have been the case before the maximum penalties were increased. I reduce that sum by 25% because of the plea of guilty and by a further sum to reflect the lack of relevant history. I fine the appellant $280,000.
I will hear the parties as to consequential orders.