Pearson & Rockford Homes Pty Ltd v Berri Barmera Council - [2015] SASC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Criminal)
PEARCE AND ROCKFORD HOMES PTY LTD v BERRI BARMERA COUNCIL
[2015] SASC 48
Judgment of The Honourable Justice Sulan
30 March 2015
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING AND DEVELOPMENT PROSECUTIONS - CONTRARY TO PLANNING SCHEME
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING AND DEVELOPMENT PROSECUTIONS - SENTENCING
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
Appeal against penalty imposed by a Judge in the Environment, Resources and Development Court. The appellants pleaded guilty to breaching a development approval contrary to s 32 and s 44(2) of the Development Act 1993 (SA). They were each fined and had convictions recorded. The appellants had constructed a driveway, garage and dwelling on a residential property at Berri. The Judge was in error in declining to exercise the discretion not to record convictions, pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 (SA).
Appeal allowed.
Development Act 1993 (SA) s 32, s 44(2); Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.

PEARCE AND ROCKFORD HOMES PTY LTD v BERRI BARMERA COUNCIL
[2015] SASC 48
Appeals to a Single Judge: Criminal

SULAN J: This is an appeal against a penalty imposed by a Judge in the Environment, Resources and Development Court. On 17 July 2014, the appellants, John Pearce and Rockford Homes Pty Ltd (“Rockford Homes”), each pleaded guilty to one count of undertaking a development without consent and undertaking a development not in accordance with a development approval granted, contrary to s 32 and s 44(2) of the Development Act 1993 (SA) (“the Act”). The offence carries a maximum penalty of $120,000.
On 16 October 2014, the Judge convicted both appellants and fined Mr Pearce $4800 and Rockford Homes $12,000. Both appellants received a discount of 20 per cent for their guilty pleas, reducing their penalties from $6000 and $15,000 respectively.
The appellants advance the following grounds of appeal:
1.The sentencing Judge erred in finding that the finished floor level of the garage and dwelling was built about 650 mm above the approved height.
2.The sentencing Judge erred in recording a conviction against each appellant and declining to exercise her discretion not to record a conviction pursuant to s 16 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”).
Sections 33 and 44 of the Act provide:
32—Development must be approved under this Act
Subject to this Act, no development may be undertaken unless the development is an approved development.
44—General offences
(1)     A person must not undertake development contrary to this Division.
Maximum penalty: $120 000.
Additional penalty.
Default penalty: $500.
(2)     A person must not undertake development contrary to a development                  authorisation under this Division.
Maximum penalty: $120 000.
Additional penalty.
Default penalty: $500.
(3)     A person who has the benefit of a development must ensure that the           development is used, maintained and operated in accordance with—
(a)     any development authorisation under this Division; and
(b)     any plans, drawings, specifications or other documents submitted to                    a relevant authority for the purposes of this Division that are relevant   to any such approval.
Maximum penalty: $60 000.
(4)     A person must not contravene, or fail to comply with, a condition imposed     under this Division.
Maximum penalty: $120 000.
Additional penalty.
Default penalty: $500.
"development authorisation" means any assessment, decision, permission, consent, approval, authorisation or certificate required by or under this Act or any other Act prescribed by the regulations for the purposes of this definition;
The Notice of Appeal was filed outside the prescribed period of 21 days after the penalties were imposed on 16 October 2014. The respondent did not object to an extension of time within which to file the Notice. I extend the time within which to file a Notice of Appeal to 23 December 2014.
Background
Mr Pearce is the sole director of Rockford Homes, which was trading as Cavalier Homes Riverland. The appellants were constructing a driveway, garage and dwelling on a residential property on Derrick Street, Berri. On 28 August 2012, Rockford Homes applied to the respondent, Berri Barmera Council (“the Council”), for development approval to build a single storey house. A development officer, Cheryle Pedler, reviewed the application. A series of communications resulted between Ms Pedler and Mr Jarvis, a Rockford Homes employee. Ms Pedler requested amended site plans to ensure that the gradient of the driveway was at an appropriate level.
On 12 October 2012, development approval was granted by the Council to construct the driveway with prescribed gradient levels, and the garage and dwelling with a maximum finished floor level. Mr Pearce was unaware of the ongoing correspondence until Mr Jarvis verbally informed him that development approval had been granted.
The owners engaged a third party to perform the earthworks which were completed in about November 2012. Usually, Rockford Homes would commission earthworks but, in this case, the owners engaged their nominated contractor. Rockford Homes communicated their receipt of the development approval to the owners so that the earthworks could commence. On 4 December 2012, a building inspection officer from the Council determined that the steel framework was able to support concrete footings. Accordingly, concrete footings were poured on 10 December 2012. The building inspector is not responsible for ensuring that the finished floor level of the garage and dwelling is consistent with the development approval.
On or around 10 September 2013, Ms Pedler conducted an inspection of the property and ultimately found that the height of the finished floor level of the garage and dwelling were above the approved height by approximately 650 mm. This was communicated to Mr Pearce and Mr Jarvis, with a request for further information about the levels and grades of the concrete. On 30 September 2013, Mr Jarvis sent the Council a site plan disclosing the gradient of the driveway as steeper than the permitted gradient, and the finished floor level of the garage and dwelling being about 650 mm above the approved height. On 16 October 2013, at a meeting with Council officers and Mr Jarvis, Mr Pearce admitted that the finished floor levels of the dwelling and garage were above the approved height in the development approval. He also stated that the owners were responsible for arranging the earthworks.
On 5 March 2014, the appellants and the owners were charged with the offence to which each has pleaded guilty. On 16 October 2014, the sentencing Judge recorded convictions against Mr Pearce and Rockford Homes and imposed penalties of $4800 and $12,000 respectively, after taking into account their guilty pleas. The owners were not convicted, but each was ordered to pay a fine of $350.
The appeal
The appellants contend that the Judge made a factual error in finding that the finished floor level of the garage and dwelling was about 650 mm above the approved height. Counsel for the appellants contend that the Council’s calculations were flawed. It appears that the temporary benchmark was located on different boundaries of the subject property in different plans relied on by the prosecution. Counsel submits that, because the figures come from different plans and the slope of the property slides from west to east, one cannot combine these plans to arrive at an accurate figure to determine the difference in height.
The appellants engaged a licensed surveyor, Mr Anderson, to determine the correct difference in height between the approved height and the finished floor level. By consent of the Council, I admitted the affidavit of Ralph Anderson, dated 20 February 2015.
Mr Anderson used a temporary benchmark at the top of the kerb adjacent to the western boundary of the subject property to determine that the finished floor level was 101.83. He noted that the finished floor level of the neighbouring property to the east was 101.63 and concluded that there is a height differential between the two properties of 200 mm. Mr Anderson further noted that, according to the proposed site plan, the finished floor level of the subject dwelling should be 50 mm higher than the finished floor level of the dwelling on the eastern property. That is, there would be a discrepancy of 50 mm if the garage and dwelling on the subject property was constructed in accordance with the development approval. Counsel submitted that the correct height of the subject dwelling is 150 mm above the approved height.
Counsel for the respondent contended that the height differential was appropriately measured from street level to the finished floor level of the garage and dwelling of the subject property. The difference between the finished floor level of the subject property and adjoining properties did not feature in the calculation because the Council was concerned with the gradient level of the driveway. It was suggested that if the finished floor level of 101.83 is accepted, as determined by Mr Anderson using a western benchmark, then the discrepancy with the approved height of 101.45 becomes 380 mm.
It appears that the subject of the Council’s complaint at first instance concerned two aspects, first with respect to the gradient level of the driveway and second with the finished floor level of the garage and dwelling. The factual finding of the sentencing Judge concerned the purported error in the difference between the actual height of the finished floor level of the garage and dwelling and the approved height. Counsel for the respondent did not dispute that there was an error in concluding that the finished floor level was about 650 mm above the approved height.
Counsel for the appellants contend that the sentencing Judge was in error in declining to exercise the discretion not to record a conviction, pursuant to s 16 of the Sentencing Act, which provides:
16—Imposition of penalty without conviction
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to—
(i)     the character, antecedents, age or physical or mental condition of the          defendant; or
(ii)    the fact that the offence was trifling; or
(iii)     any other extenuating circumstances,
good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction.
The sentencing Judge reasoned:
On the basis of the information before me, it is not open to me to draw the inference that the offending, on the part of Mr Pearce or Rockford Homes Pty Ltd was intentional. I will sentence on the basis that the offending was not the product of a deliberate decision, but was, rather, the result of a combination of these failures of procedure; the provision to the earthmover of the wrong plan, together with a failure to check the levels after the earthmover had completed his task and before beginning to build.
The Judge considered s 16 of the Sentencing Act. Her Honour said:
No real basis was put forward by Mr Black for the exercise of the discretion under s 16. The offence is certainly not trifling, bearing in mind the purpose of the Act. With respect to Mr Pearce and Rockford Homes Pty Ltd, I decline to exercise my discretion under s 16. Convictions will be recorded in relation to both of those defendants.
I agree that the offence is not trifling. It appears that the Judge did not consider whether the appellants are unlikely to commit such an offence again, nor did she consider whether, having regard to each appellant’s previously unblemished record and any other extenuating circumstances, good reason existed to not record convictions. Other than to conclude that the offence was not trifling, the Judge has not given any reason to decline to exercise her discretion to not record a conviction.
The appellants have never been the subject of any previous complaint in relation to their development work. In the case of Mr Pearce, he has worked in the industry for about 40 years. Rockford Homes has held a builder’s licence since 2004. The offending arose out of a failure of internal procedures and can be characterised as an exceptional oversight, rather than resulting from a pattern of misconduct. The Judge concluded that the breach of the Act was not intentional.
The circumstances of the offending and the absence of any previous complaints against the appellants is cogent evidence that neither Mr Pearce nor Rockford Homes is likely to commit such an offence again. It is also evidence which supports a contention that because of their prior good record and, in the case of Mr Pearce his previous good character, good reason exists not to record convictions.
Subsequent steps have been taken to ensure such internal failures do not occur again. Mr Pearce has taken steps to avoid any further failures occurring. He has instructed his employees that, in circumstances where owners of a property directly engage a third party with respect to earthworks, Rockford Homes must first confirm that the site levels are consistent with the development approval.
There is no adverse impact on the house or on the neighbours’ properties as a result of the gradient of the driveway or height of the finished floor level.
A conviction will have a significantly adverse effect on the future business of Rockford Homes. That is an extenuating circumstance which further supports the contention that good reason exists not to record a conviction.
The respondent does not oppose the Court exercising its discretion not to record a conviction.
I am satisfied that the discretion of the sentencing Judge miscarried in declining not to record convictions. The appellants have built up a successful business over many years without any previous complaints. The nature of the breach was inadvertent as a result of a procedural failure within the operation of the business. There was miscommunication with respect to checking that the construction which had been completed up until that time was consistent with the development approval.
I conclude that the appellants are unlikely to reoffend, and that good reason exists for not recording a conviction.
Conclusion
The fines imposed by the sentencing Judge were not the subject of complaint by the appellants.
I allow the appeal and order that, upon the pleas of guilty, no conviction is recorded. The fines in each case are confirmed.