Shires v Rural City of Murray Bridge
[2022] SASC 147
•8 December 2022
Supreme Court of South Australia
(Appeal to a Single Judge)
SHIRES v RURAL CITY OF MURRAY BRIDGE
[2022] SASC 147
Judgment of the Honourable Chief Justice Kourakis
8 December 2022
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - FINES - AMOUNT
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING AND DEVELOPMENT PROSECUTIONS - SENTENCING
ENVIRONMENT AND PLANNING - BUILDING CONTROL - OTHER MATTERS - OFFENCES AND PENALTIES - PENALTIES
ENVIRONMENT AND PLANNING - BUILDING CONTROL - OTHER MATTERS - OFFENCES AND PENALTIES - UNAUTHORISED WORK
Appeal against penalty.
The appellant, who was self-represented during the course of the trial and the subsequent sentencing hearing, was convicted of seven contraventions of the Development Act 1993 (SA) arising out of unapproved developments on vacant land in Murray Bridge. This is an appeal against the penalties imposed by a Judge of the Environment, Resources and Development Court.
The Judge imposed penalties for each of the charged offences totalling $114,800 after reducing notional penalties totalling $164,000 by 30 per cent in an application of the principles of totality and proportionality. The Judge also ordered that the appellant pay the respondent’s costs on the Supreme Court cost scale.
The appellant brings this appeal on five grounds:
1.The Judge denied the appellant procedural fairness by failing to advise her of the operation of s 120 of the Sentencing Act 2017 (SA) and by failing to put her on notice that her submissions with respect to her financial position were not accepted prior to passing sentence.
2.The Judge erred by failing to apply or have regard to s 120 of the Sentencing Act 2017 by making findings not available on the evidence and ordering the payment of a fine in addition to an order for costs.
3.The Judge erred in his application of the totality principle in imposing the fine that he did in addition to costs above the ordinary scale.
4.The sentence imposed was manifestly excessive.
5.The Judge erred in ordering costs above the usual scale.
Held (allowing the appeal on all grounds):
1.The cumulative penalty imposed by the sentencing Judge was manifestly excessive in that it was grossly disproportionate to the appellant’s conduct, the value of her land, her expected gain and her capacity to pay the fine.
2.The penalties imposed by the sentencing Judge are set aside.
3.The fines which would otherwise be warranted are reduced by one-third pursuant to s 120 of the Sentencing Act 2017 to $6,000 in respect of Count 1, $900 in respect of Count 2, $4,000 in respect of Count 3, $400 in respect of Count 4, $1,000 in respect of each of Counts 5 and 6, and $600 in respect of Count 7.
4.The order for costs on the Supreme Court scale is set aside.
5.Section 120 of the Sentencing Act 2017 encompasses all forms of pecuniary penalty, including costs.
6.The appellant is to pay the respondent’s costs on the ordinary scale.
Criminal Procedure Act 1921 (SA) s 189; Development Act 1993 (SA); Environment, Resources and Development Court Act 1993 (SA) s 7(3a); Environment, Resources and Development Court Rules 2003 (SA) r 1.3.2; Sentencing Act 2017 (SA) s 120, referred to.
Clark v Lovegrove (1974) 62 LSJS 433; Colling v Steel (1971) 2 SASR 249; Filippou v The Queen (2015) 256 CLR 47; Law v Deed [1970] SASR 374; MJDH v Director of Public Prosecutions (DPP) (SA) (2013) 116 SASR 180; R v Olbrich (1999) 199 CLR 270, considered.
SHIRES v RURAL CITY OF MURRAY BRIDGE
[2022] SASC 147
Appeal to a single Judge
KOURAKIS CJ:
Introduction: This is an appeal against the penalties imposed by a Judge of the Environment, Resources and Development Court (the ERD Court), upon the appellant’s, Ms Shires, convictions of seven contraventions of the Development Act 1993 (SA) (the Development Act).[1]
[1] N.B. The Development Act 1993 was repealed during the course of the appeal by Sch 6 cl 2 of Planning, Development and Infrastructure Act2016 (SA).
On 4 September 2020, the Judge imposed penalties for each of the charged offences totalling $114,800 after reducing notional penalties totalling $164,000 by 30 per cent because he considered that a penalty of that magnitude would be crushing.[2] The particulars of each charge and the penalty imposed are set out in the following table:
[2] Rural City of Murray Bridge v Shires (No 2) [2020] SAERDC 31 at [62].
Table of offences
Count Date of Offence Offence & Maximum Penalty Particulars Penalty 1. (30/08/2017 – 19/09/2017)
(Contrary to s 44(1) of the Development Act)
Undertaking development works without approval – Maximum penalty $120,000
Placement of a transportable building on land without development approval $36,000 notional sentence reduced by 30 per cent to $25,200 2. (15/12/2017 – )
(Contrary to s 84(11) of the Development Act)
Failure to comply with a direction – Maximum penalty $20,000 Failure to comply with a direction to remove the transportable building from the land and restore the land to its pre-development condition $6,000 notional sentence reduced by 30 per cent to $4,200 3. (20/08/2018 – 20/09/2018)
(Contrary to s 44(1) of the Development Act)
Undertaking development works without approval – Maximum penalty $120,000 Construction of an amenities block on land without development approval $72,000 notional sentence reduced by 30 per cent to $50,400 4. (05/09/2018 – )
(Contrary to s 84(11) of the Development Act)
Failure to comply with a direction – Maximum penalty $20,000 Failure to comply with a further direction to cease unapproved development works and remove the amenities block
$12,000 notional sentence reduced by 30 per cent to $8,400 5. (17/08/2018 – 27/09/2018)
(Contrary to s 44(1) of the Development Act)
Undertaking development works without approval – Maximum penalty $120,000 Unlawful change of use of the land for use as office space $36,000 notional sentence reduced by 30 per cent to $25,200 6. (01/11/2018 – 25/07/2019)
(Contrary to s 44(1) of the Development Act)
Undertaking development works without approval – Maximum penalty $120,000 Unlawful use of the land as a residential dwelling 7. (20/09/2018)
(Contrary to s 19(7)(a) of the Development Act)
Hindering an authorised officer in the exercise of their powers without reasonable excuse Striking an authorised officer across the buttocks with a shovel while the officer was undertaking an inspection of the land and preventing the officers from completing their inspection $2,000 notional fine reduced by 30 per cent to $1,400 Total (notional):
Total (actual):
$164,000.00
$114,800.00
The offences arose out of unapproved developments of vacant land in Murray Bridge by placing a transportable building on it. The capital valuation of the land for State taxation purposes was, at the time, $56,000, but it was purchased for $58,000. It is mortgaged to secure a loan with an outstanding balance, at the time, of $45,000. Leaving aside the last-mentioned offence of hindering an authorised officer, and Ms Shires’ claim that she has only a 1/32 interest in the land, the total fines of $114,800 are therefore more than double the capital value of the property, at the time, more than 10 times the equity remaining in the property, and many times more than any increase in the value which the developments might have produced.
The appellant, Ms Shires, was self-represented during the course of the six‑day trial and the subsequent sentencing hearing. The respondent, and prosecutor below, the Rural City of Murray Bridge (the Council) was represented by solicitors and counsel experienced in planning law. Ms Shires pleaded guilty to Count 1 just before the commencement of the trial and changed her plea on Count 2 on the fourth day of trial, after the close of the respondent’s case. The Judge found the appellant guilty of Counts 3-7. In addition to the fines imposed, the Judge ordered the appellant to pay the respondent’s costs on the Supreme Court cost scale.
Ms Shires appealed against the penalties on six grounds but later abandoned the fourth ground. The remaining grounds are:
·Ground 1 – that the Judge denied her procedural fairness by failing to advise her of the operation of s 120 of the Sentencing Act 2017 (SA) (the Sentencing Act) and by failing to put her on notice that her submissions with respect to her financial position were not accepted prior to passing sentence;
·Ground 2 – that the Judge erred by failing to apply, or have regard to, s 120 of the Sentencing Act by making findings not available on the evidence and ordering the payment of a fine in addition to an order for costs against the appellant;
·Ground 3 – that the Judge erred in his application of the totality principle in imposing the fine that he did in addition to costs above the ordinary scale;
·Ground 5 – that the sentence imposed was manifestly excessive; and
·Ground 6 – that the Judge erred in ordering costs above the usual scale.
I allow the appeal on all remaining grounds. As to Ground 1, the Judge did not allow the appellant an adjournment in order to provide additional material about her income and assets after the Council informed the Court that the material she had provided was not accepted. There was no good reason to refuse the adjournment. The Judge ought to have informed Ms Shires as an unrepresented defendant that it was open to her to make a submission that the fines which might otherwise be warranted should be reduced pursuant to s 120 of the Sentencing Act. The Judge erred in failing to review the fines he proposed to impose in order to comply with s 120 of the Sentencing Act. The cumulative penalty imposed by the sentencing Judge was manifestly excessive in that it was grossly disproportionate to the appellant’s conduct, the value of the land, her expected gain and her capacity to pay the fine. There was no good reason to order the payment of costs on the Supreme Court scale. I elaborate on my reasons for allowing the appeal below.
I have heard submissions and received further material for the purpose of resentencing the appellant. For the reasons given below I commence with notional fines on each count but, having regard to Ms Shires’ capacity to pay, I reduce the fines by one-third pursuant to s 120 of the Sentencing Act as follows:
· Count 1 – Fine $9,000.00 reduced to $6,000.00
· Count 2 – Fine $1,200.00 reduced to $900.00
· Count 3 – Fine $6,000.00 reduced to $4,000.00
· Count 4 – Fine $600.00 reduced to $400.00
· Count 5 – Fine $1,500.00 reduced to $1,000.00
· Count 6 – Fine $1,500.00 reduced to $1,000.00
· Count 7 – Fine $900.00 reduced to $600.00
The offending
Ms Shires is the proprietor and manager of a property management business (Mount Barker Property Management).
The offending occurred over about 28 months from August 2017 to December 2019. Ms Shires’ oppositional personality trait and impetuosity played no small part in her persistent disregard of the planning laws over that period and in the protracted proceedings which followed.
On 10 August 2017, Ms Shires became the registered proprietor of the property, a vacant lot, at 6 Rachel Street, Murray Bridge (the property) which falls within the boundaries of the Council. She testified that she purchased the property for $58,000. The Council’s capital valuation as at June 2020 was $56,000. On 5 June 2020, the appellant transferred a 31/32 share of her interest in the property to an acquaintance, Mr Hutchinson. Ms Shires claimed that she did so in order to discharge a $30,000 debt she owed to Mr Hutchinson. At the time of the hearing, Mr Hutchinson was remanded in custody accused of murder. In an affidavit filed on the appeal, Ms Shires deposes that Mr Hutchinson is also the registered proprietor of a home at Woods Point over which Ms Shires has an unspecified interest protected by a caveat. The property, which has a capital value of $140,000, is caveated by a Housing Improvement Order limiting the weekly rent to about $170 per week. Ms Shires pays about $700 per month to reside there into a NAB loan account, on which about $125,000 remains outstanding.
On 30 August 2017, Ms Shires, without prior development or building approval, arranged for the placement of a transportable building, resembling an ATCO hut (the hut), on the property (Count 1). On that same day, Ms Shires promoted the property for lease in the following month as an office, studio or retail premises, through the Mount Barker Property Management social media account.
By 19 September 2017 the Council was alerted to the hut’s presence. By letter dated 27 September 2017 and received on 5 October 2017, a Council officer wrote to the appellant informing her that the placement of the hut on the land was in contravention of the Development Act and requested that Ms Shires remove the hut from the land and cease all non-approved developments by 11 October 2017.
On 9 October 2017, a Council officer photographed the property and observed a sign, containing the appellant’s mobile phone number, advertising the property ‘for lease’.
On 2 November 2017, the Council issued the first notice under s 84(2) of the Development Act (the first notice) and ordered the removal of the hut and the restoration of the land to its pre-development condition by 15 December 2017.
Following the receipt of the first notice, the appellant twice met with Council officers on 20 November 2017 and 5 December 2017. At each meeting, Ms Shires was informed that if she objected to the notice, it was necessary for her to obtain orders from the ERD Court suspending it. She was informed that the lodgement of an administrative appeal or development application would not cause the notice to ‘go on hold’.
On 14 December 2017, Ms Shires filed a Development Plan Consent application describing the proposed development as ‘plumbing & electrical infrastructure’. She amended the application on 1 August 2018. The amended application included relatively detailed plans for a building resembling the hut, a carport and an ancillary building containing toilet facilities (the amenities block) together with landscaping and decking linking the transportable building to the amenity block. The application was refused on 16 November 2018.
On 18 December 2017 and again on 20 December 2017, Council officers inspected the property and confirmed that the hut had not been removed and that the appellant had not complied with the notice (Count 2). A neighbour, Mr Clarke, gave evidence that on 19 December 2017, he observed, and spoke with, a person who appeared to be an electrician undertaking work on the land. On 3 January 2018, he also observed the appellant working on the land.
The property was then left unoccupied for about seven months.
On 29 and 30 July 2018, the appellant was contacted by a potential tenant, Ms Stacey Cioffi. Ms Cioffi apparently intended to lease the property as office space for her cleaning business. An exchange of emails took place between Ms Shires and Ms Cioffi between 9 and 11 August 2018. Ms Cioffi queried various aspects of the property, prompting the appellant to provide Ms Cioffi with the development plans and to undertake to complete further works to the interior and exterior of the property. The result of those negotiations was the execution of a 12-month lease and a ‘license to occupy’. Though purporting to be a commercial lease, the lease was, in form, a Residential Tenancy Agreement. When asked by Ms Cioffi how to fill out the sections about ‘residing’ at the property, Ms Shires replied ‘No bother. … Kind of treat this as if you & Tom (& any other individual/entity that is a registered owner of the cleaning business) are renting a 2nd home without the kids.’ The substance of the agreement between the appellant and Ms Cioffi was that Ms Cioffi would rent the property at a significant discount for the first month, reverting to the full rate of rent from 13 September 2018 once the amenities block was complete. Ms Shires also claimed that the build would be completed by October 2018.
Ms Cioffi moved into the premises on 16 August 2018. In the weeks that followed Ms Shires organised for various tradespeople to attend the property to see to the installation of the promised amenities, including the amenities block.
On 22 August 2018, a Council officer photographed the floor frame of the amenities block. The following day Council officers again observed the property, noting that part of the street kerbing had been removed and that a person, presumably Ms Cioffi, was sitting at a desk inside the hut. Between 28 August 2018 and 31 August 2018 further work was undertaken to erect the amenities block frame. The construction of the amenities block was the subject of Count 3.
On 30 August 2018, the Council issued a subsequent notice under s 84(2) (the second notice) containing further directions to cease further works, remove the unapproved structures and restore the land to its original condition by 14 September 2018. That notice was served on 5 September 2018, but the appellant claimed not to have read the notice until 11 September 2018.
In the weeks that followed, Ms Shires continued to organise various tradespeople to attend the property to conduct further works to both the interior and the exterior of the structure and the land. By the time Council officers attended the property on 17 September 2018 after the expiry of the second notice, it was evident that Ms Shires had not complied with that notice (Count 4), and, quite the contrary, had pushed ahead with the development.
Three Council officers attended the property on the afternoon of 20 September 2018 to inspect the site and to gather evidence. All three officers were authorised officers within the meaning of s 4(1) of the Development Act. The officers were dressed in high visibility vests wearing identity cards around their necks and identified themselves to the appellant, who was at the property, explaining that they were officers of the Council empowered to enter and inspect the property. Consistent with her disregard for any form of planning regulation, Ms Shires was annoyed by the presence of the officers and demanded that they leave. Curiously, she threatened to call the police if they did not. When the officers refused to leave Ms Shires struck one of the officers on the backside with a shovel. The officers suspended the performance of their duties and withdrew from the property until the police arrived in order to avoid an escalation (Count 7).
Ms Cioffi observed part of the skirmish. Ms Cioffi explained to the officers that she had leased the property from Ms Shires as an office (Count 5). Ms Cioffi vacated the property a short time later on or about 28 September 2018.
On 10 October 2018 another prospective tenant, Mr Jerik Bertuldo, contacted Ms Shires. After some negotiations Mr Bertuldo agreed to lease the premises as his dwelling. On 1 November 2018, Mr Bertuldo entered into a Residential Tenancy Agreement and another agreement described as a ‘Residential Accommodation Agreement – Short term Flexi’. Shortly after the execution of those agreements Mr Bertuldo moved into the premises and began using it as his residence (Count 6). In the months that followed the appellant continued to undertake building work on the premises including the installation of solar panels, fencing, water tanks as well as work to the interior of the hut.
On 25 July 2019, Council officers inspected the property and spoke with Mr Bertuldo. In the course of conversation, the Council officers informed Mr Bertuldo that the development was unlawful and suggested that he vacate the premises. On 3 August 2019 he did so.
The trial
By summons dated 6 November 2019, the respondent commenced proceedings in the ERD Court. The delay in bringing proceedings was not explained. Proceedings could, of course, have commenced after the commission of Count 1. It is difficult to understand why they were not commenced promptly after Ms Shires failed to comply with the second notice at the very least. The respondent indicated to the Judge that three days would be required to present the Council’s case and the trial was listed for that long. Prior to the commencement of trial on the first day, the appellant pleaded guilty to Count 1 and not guilty to Counts 2-7. The appellant later sought to withdraw her plea of guilty but permission was refused.
For various reasons, the trial was a prolonged one. Ms Shires was not prepared for the trial and frequently required the assistance of the Judge. She appeared to have no appreciation of the seriousness of the charges or the proceedings. Much evidence was not genuinely in dispute, and, if Ms Shires were represented, would have been agreed. Ms Shires took every opportunity to cross‑examine the Council’s witnesses, but her questioning was often irrelevant. She tended to lapse into long monologues about her disputes with the Council and her neighbour Mr Clarke.
The Council closed its case on the afternoon of the fourth day of trial. Shortly after the close of the Council’s case the appellant pleaded guilty to Count 2 and admitted certain facts pertaining to Count 4. Ms Shires gave evidence in the defence case in the course of which she made several admissions but attempted to justify her conduct by emphasising the wrongs of the Council’s housing and development policy. Ms Shires closed her case after completing her evidence on the fifth day.
Counsel for the respondent opened and closed the informant’s case in writing with short supplementary submissions, considerably reducing the length of the trial.
On the sixth and final day of trial Ms Shires sought to withdraw her guilty plea in relation to Count 2. The Judge refused that application. The appellant’s address consumed the remainder of the sixth day in what were generally confusing and irrelevant submissions. The Judge returned his verdicts on 10 July 2020, finding Ms Shires guilty of Counts 3-7.
Sentencing submissions
When the Judge delivered his verdicts, his Honour identified certain sentencing considerations prescribed by the Sentencing Act on which he would like to hear submissions at a later date. The Judge explained the primary and secondary purposes of sentencing and foreshadowed the submissions that the informant was likely to make. The Judge explained that he would like information on Ms Shires’ personal circumstances. He warned Ms Shires that the monetary penalties could be ‘very significant’. Ms Shires explained that she was unemployed as a result of COVID-19 restrictions. She asked the Judge whether she should ‘bring statements and things like that?’. The following exchange took place:
HIS HONOUR: If there are any documents that you’d like me to refer to, I want you give them to Ms Ryan, who is instructing Mr Billington, before the next hearing and you can give them to me. The purpose of today is not for me to hear all of that. I’ve told you what I want to hear about, so if there are particular issues concerning your financial matters and the like and you want to show me documents about that -
MS SHIRES:Is it relevant at this point in time?
HIS HONOUR: Your circumstances, including your financial circumstances, may well be relevant to me determining what penalty to impose. If you don’t want to give me those documents, then I won’t take them into account. If you do, then I will.
MS SHIRES:I don’t need to move this building because now I’m guilty. I obviously don’t need to do anything further. I don’t need to bring any documents in relation to the building anymore. That’s all done. It’s pretty much just turn up, maybe bring some Centrelink income statements which I should share with Ms Ryan and just be here for sentencing?
HIS HONOUR: Yes and be in a position, if you wish, to make any submissions about those matters that you’ve noted down. That will all occur at 10 o’clock on Friday, 14 August. So make a note of that date.
It is apparent from the exchanges with Ms Shires after the verdicts were handed down that she had, to say the least, an imperfect understanding of the sentencing process. Ms Shires’ last response to the Judge suggested that she was under the impression that establishing that she was in receipt of Centrelink was the most critical matter for her to attend to. Ms Shires did not appear to understand that the expense she would incur in removing buildings was an important consideration. Her attention was not drawn to s 120 of the Sentencing Act.
Before her matter was called back on for sentencing submissions, Ms Shires engaged in correspondence with the solicitor for the Council. On 11 July 2020, she disclosed to the solicitor that she was heavily leveraged with two loans secured against the property totalling $80,000 and that she had transferred part of her interest to settle a loan provided to Mount Barker Property Management and to unencumber the transportable building. The appellant also claimed that her residence at 52 Mulgundawah Road was valued at $199,000 and was mortgaged to an equivalent sum.
In an email dated 27 July 2020, the solicitor outlined the documentation that may be relevant to sentencing, specifically noting that the Court may need that documentation to understand Ms Shires’ ability to meet the penalty which would be imposed. The solicitor also noted that Ms Shires’ income appeared to derive from five sources; her employment as a bartender, rent from tenants residing at her residence, the tenants residing at Rachel Street, Centrelink payments and income from her business. The business operated by Ms Shires provided property management services. At the time of the hearing of her appeal, her licence to conduct that business had been cancelled. Ms Shires initiated a review of that suspension in the South Australian Civil and Administrative Tribunal (SACAT). The appellant declined the solicitor’s request, stating that she ‘look[ed] forward to seeing any financial documents which [the Council] wish to rely on when making [its] claims as per below.’
On 30 July 2020 Ms Shires emailed the Judge’s chambers a number of documents and photographs on which she sought to rely, including a Centrelink income statement, council rate notices, and screenshots of her loan and account balances. Ms Shires explained in that email that her business had run at a loss since its inception in 2017 stating ‘I trust [the solicitor] will access my last year’s tax reporting to confirm this.’ Ms Shires was, of course, mistaken about the Council’s ability to access her tax returns but that is not a surprising over‑estimation of the powers of the Council for a defendant in Ms Shires’ position to make.
No further documents were submitted before the sentencing hearing.
On 14 August 2020, the Judge heard the parties’ submissions on sentencing.
The Judge drew Ms Shires’ attention to the statutory objectives and principles of sentencing:
Well, Ms Shires, I told you on the last occasion to note down the number of matters that are relevant to the Sentencing Act. Can I tell you this, that the Sentencing Act - and you might want to make a note of them now. If you don’t that’s a matter for you.
Protection of the safety of the community and in Development Act offences it’s often the case that submissions are made about whether building projects cause any risk to members of the community or people living on the premises. The question of the court having regard to matters of specific deterrence and general deterrence. And then the court having regard to the nature and circumstances of the offending, the personal circumstances of the defendant, including things like their age, financial circumstances, family status, and also to any, what I call antecedents, which really mean any prior relevant offences, and Mr Billington’s made it clear this morning that there are no relevant prior offences. They are the types of matters that Mr Billington will raise.
I think in a general sense, Mr Billington, I’ve covered the matters that are contained within the Sentencing Act and I invite you to proceed with your submissions, and then Ms Shires can make such submissions as she sees fit.
The respondent’s submissions addressed four main topics:
· the seriousness of the offending;
· subsequent events and the need for general and specific deterrence;
· contrition and remorse, or lack thereof, by the appellant; and
· the personal circumstances of the appellant including prior offending.
Counsel for the respondent submitted, and the Judge accepted, that the appellant should not enjoy the benefit of a 10 per cent legislative discount that might apply, or the Judge’s common law sentencing discount discretion, by virtue of her guilty plea in respect of Count 1.
The offences were characterised by counsel for the Council in the following way by reference to their objective seriousness. I note here that the lack of any permanent or irreversible impact to the land was accepted as an alleviating factor against all of the offences with the exception of Counts 5 and 6.
· Count 1: (Placement of a transportable building on land without development approval): Medium range.
· It was submitted that because it was a whole building which was entirely unworthy of development approval and had an adverse impact on the character of the street, and by virtue of Ms Shires’ experience in real estate, that it warranted a mid-range penalty. Counsel for the respondent correctly conceded however, that the building did not have a lasting impact once removed and any impact was limited to simply ‘look[ing] out of place’.
· Count 2: (Failure to comply with the first notice): Upper mid-range.
· Mr Billington cited Ms Shires’ deliberate defiance and conscious choice to not comply and Ms Shires’ motivation for ‘commercial’ gain from any leasing income as reason for this characterisation.
· Count 3: (Construction of an amenities block on land): High-range.
· By reason of the close connection with Counts 1 and 2, and Ms Shires’ deliberate disregard for the Council’s orders, the offence was characterised as high-range.
· Count 4: (Failure to comply with the second notice): Upper high‑range.
· Again, by reason of the close connection with Counts 1-3, and Ms Shires’ deliberate disregard for the Council’s prospective and retrospective directions, the offence was characterised as upper high‑range.
· Count 5: (Leasing the property as an office) and Count 6: (Leasing the property as a residential dwelling): Low mid-range.
· Ms Shires’ experience as a property manager was cited by Mr Billington as a reason for charactering it as such, in addition to the anchoring effect it caused to dissuade Ms Shires from removing the building.
· Count 7: (Hindering an authorised officer): High-range offending.[3]
· Ms Shires’ act of swinging a shovel at the officer was characterised as an extreme form of hindering an officer and therefore demanded close to the maximum penalty for that offence.
[3] Mr Billington submitted it was ‘at the highest end of the high-range of these types of offences’.
The respondent’s counsel emphasised the need in particular for specific deterrence on account of Ms Shires’ persistent breaches and events occurring subsequent to the trial. To this end, counsel tendered an affidavit of Ms Giulia Mason, a senior planning officer at the Council, deposing to the placement of a further structure on the property and submitted to the Judge that a condign punishment was required if future breaches were to be deterred.
Following the respondent counsel’s submissions, the Judge invited Ms Shires to make submissions, saying:
Thank you Mr Billington. Now, Ms Shires, now’s your opportunity for you to address me on any of those matters. Mr Billington’s talked about the seriousness of the offending, general and specific deterrence; he’s talked about the construction, or the placement of the new building, the removal of the old building; something which we haven’t dealt with, which is your particular financial circumstances. As I’ve told you on previous occasions, the penalties in relation to what is essentially the unlawful or unauthorised development offences are very significant, up to $120,000. In relation to the unlawful use, up to $60,000. The fine in relation to hindering an authorised officer is quite modest, up to $4,000. So, here’s your opportunity to tell me what it is that you wish to tell me, and I must say I found Mr Billington’s agenda, which I’ve just outlined, to be both helpful, but also complete, so here’s your opportunity.
[Emphasis added]
Several matters may be noted. First, the reference to the maximum penalties might not have alerted Ms Shires to the range of penalties the Judge had in mind. Secondly, the Judge did not alert Ms Shires to s 120 of the Sentencing Act.
The Judge prompted the appellant for submissions on her financial circumstances:
HIS HONOUR: What can you tell me about your financial circumstance? You sent some documents in.
…
HIS HONOUR: Can you just tell me about your assets and liabilities. I understand your income position.
…
MS SHIRES: I’m absolutely maxed on mortgage on to that, so it’s worth about 200 grand and I owe 200 grand. I think Rachel Street, the land’s worth 58 and I owe 80 on it. I’ve got moratoriums on everything, which is how I’m surviving because I have issues ... debt, which I’ve managed to pop back into my home loans.
HIS HONOUR: What’s the other debt?
MS SHIRES: So I’ve got a mortgage.
HIS HONOUR: Are all of your debts within the liability you have to the banks?
MS SHIRES: Yes. Sorry, and the rates notices which aren’t real but let’s just say they were, there’s 20 grand there and then I’ve got fines to the amount of about 10 grand for driving offences and parking offences, which were really trivial and I just didn’t get around to arguing them in time, so I wear those.
HIS HONOUR: Anything else?
MS SHIRES: I worked quite a bit last year so I have a tax debt for about $700.
In reply, Mr Billington made the submission that there was considerable uncertainty on the appellant’s financial position and that the Court could not be confident there had been full disclosure. The following exchange took place:
MR BILLINGTON: My only submission is simply this: that it’s not at all clear that this defendant is without means and that’s particularly evident in the fact that a large transportable building that must have been paid for, a loan, somehow turned up and the previous buildings have turned up on this land.
MS SHIRES: I haven’t paid for that building.
MR BILLINGTON: So development seems to be occurring.
MS SHIRES: And it doesn’t belong to me.
MR BILLINGTON: As I say, I’m happy for Ms Shires to make further submissions.
HIS HONOUR: We don’t know any of those things.
MR BILLINGTON: Exactly.
MS SHIRES: Exactly.
The Judge went on to warn the appellant that her submissions as to her financial circumstances had not been accepted:
HIS HONOUR: Yes, thank you Mr Billington.
Ms Shires, the information that I have about your financial situation I think to be very frank about it is it’s just not conclusive, it’s just not clear and what I’m concerned -
MS SHIRES: Ask me some questions.
HIS HONOUR: Ms Shires, this is your opportunity today, Mr Billington is quite right that you’ve had that opportunity.
The position when the Judge brought an end to the sentencing submissions in that way, as the Judge himself observed, was inconclusive. Mr Billington had consented to Ms Shires making further submissions. Ms Shires offered to answer the Judge’s questions. I acknowledge that the underlying problem was not the lack of submissions but the inadequacy of Ms Shires’ documentation. In those circumstances the obvious approach was to point out to Ms Shires the nature of the financial documentation which was required to understand her financial position and to give her an opportunity to produce it and to give evidence on oath if she so wished. There was no reason to apprehend that the inadequacy of Ms Shires’ disclosure was strategic rather than misinformed and disorganised.
On 4 September 2020 the Judge passed sentence, recording a conviction in respect of each count, a fine as set out in the table above and an order that the appellant pay the respondent’s costs on the Supreme Court scale.
I interpose here that Ms Shires had removed the building in late July 2020 but subsequently replaced it with another transportable building. Ms Shires purchased that building for about $20,000. She paid $18,000 of the purchase price from various sources connected to her property management business.
Grounds 3 and 5 – Application of the totality principle and manifest excess
The cumulative penalty imposed by the Judge of $114,800 was plainly excessive when considered in the context of the offending. The Judge remarked that the combination of the individual notional sentences of $164,000 was crushing and was minded to reduce each penalty by 30 per cent in consideration of the principles of totality and proportionality.[4]
[4] Rural City of Murray Bridge v Shires (No 2) [2020] SAERDC 31 at [62].
It would appear that his Honour was persuaded by the respondent’s submissions which sought to fix a range for each penalty by reference to the maximum penalty and the relative seriousness of the offending. The relative objective seriousness of the offending is but one element of the sentencing process. Even then it is necessary to ensure that all relevant criteria are taken into account in the process of classification. Those criteria include value of the property, the extent of the potential gain and the level of sophistication of the offending. The subjective culpability and motivations of the offender too must be factored into the sentencing matrix. Proportionality also requires a consideration of the financial resources of the defendant.[5] Moreover, in the case of pecuniary penalties, as with sentences of imprisonment, it is necessary to review the accumulation of penalties imposed on each count to ensure that the total penalty is proportionate to the overall criminality in the offending. In this case in particular, there was much overlap between the counts.
[5] Mark 12:41-44 (NIV) the parable of the widow’s offering of two copper coins.
Fines totalling three times the value of the property, subject to unlawful development, and more than 10 times the equity and a greater still multiple of the likely profit is a crushing financial penalty.
The need felt by the Judge to reduce the penalty by 30 per cent is indicative of the error the Judge’s approach was liable to produce. When imposing a series of fines for interrelated offences, there will be a need to moderate the fines as they accumulate to an overall punishment that is proportionate to the offending as a whole. In particular the fines imposed on Counts 2 and 4 were an excessively high proportion of the fines imposed on Counts 1 and 3 respectively having regard to the close connection between the offences of undertaking development works and failing to comply with the direction to remove the works.
Ms Shires’ scheme was an unsophisticated one. A more experienced developer would have realised the scheme could not succeed. It was a hopeless exercise from its inception and the appellant’s perseverance in spite of that fact only serves to expose her naïve obstinacy.
In respect of the offences under the Development Act, irreparable damage to land, and hazardous uses and other serious public nuisances, occupy the upper reaches of seriousness. The transportable buildings in this case were removed as quickly as they were put in place, with no permanent harm to the land.
I am satisfied that the penalties imposed for Counts 1, 3, 5 and 6 were well beyond the upper limit for offending of this nature. Moreover, the accumulated penalties were disproportionately high. I allow the appeal on Grounds 3 and 5.
Ground 1 – Procedural fairness
It will be remembered that after delivering his verdicts, the Judge warned Ms Shires that the monetary penalties could be very significant. As we have seen, the penalties the Judge ultimately imposed were substantial, totalling more than $100,000. Fines of that order were likely to bring s 120 of the Sentencing Act into play. It provides:
120—Order for payment of pecuniary sum not to be made in certain circumstances
(1)The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—
(a) the defendant would be unable to comply with the order; or
(b) compliance with the order would unduly prejudice the welfare of dependants of the defendant,
(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).
(2)Subject to subsection (3), the court is not obliged to inform itself as to the defendant’s means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
(3)In considering whether the defendant would be able to comply with the order, the court should have regard to any information available to the court as to other pecuniary sums that have been paid, or are payable, by the defendant.
Section 120 confers an exceptional sentencing power which is enlivened by the impecuniosity of the defendant. It does not merely add or emphasise, as a sentencing consideration, the defendant’s financial circumstances. A defendant’s financial circumstances are a relevant consideration when fashioning a pecuniary penalty but, as with all sentencing considerations, must be balanced against all other sentencing considerations in fixing a penalty which achieves the objects of sentencing.
Section 120 enacts a second stage or tier in the sentencing process. Having fixed a proportionate sentence or penalty, sentencing courts are precluded by s 120 of the Sentencing Act from imposing a penalty which the defendant will be unable to pay. Precisely because it is an exceptional sentencing power, s 120 requires the Court to be satisfied on the information known to the Court that the defendant does not have the financial resources to pay the fine.
Of course, an application of s 120 cannot be delayed until after a penalty has been fixed. It is necessary for a defendant to anticipate the range of proportionate penalties and if he or she does not have the financial resources to pay a fine within that range, to put before the Court information which will satisfy it that a reduction of the penalty below what would otherwise be a proportionate amount should be made.
Ms Shires had displayed little knowledge of the law and court processes and was unlikely to have appreciated the magnitude of the likely financial penalties. It was necessary, therefore, that the Judge explain to Ms Shires the operation of s 120 of the Sentencing Act and the nature of the evidence which would be required to discharge the onus on her.
I acknowledge that the Judge gave Ms Shires a general indication that her financial position was relevant to sentencing. However, his Honour did not give any indication of the likely range of the financial penalty. In respect of offences which are regularly and frequently dealt with by courts, it may not be necessary to do so even in the case of a litigant in person or at least not always necessary to do so. However, these were uncommon offences for which there was no readily ascertainable or widely understood range.
I acknowledge also that the solicitors for the respondent provided Ms Shires with a helpful checklist of information. However, a litigant in person should not be expected to accept and follow the advice of the solicitors for his or her opponent, particularly in a case like this in which Ms Shires felt a strong degree of animosity about what she, albeit unreasonably, believed was unjustified persecution by the Council.
Be that as it may, Ms Shires nonetheless provided the financial information she believed was appropriate for sentencing. The Council quite properly took the position that the information was incomplete and insufficient. Although a legal practitioner should have realised that the information was insufficient, there was insufficient material before the Judge to conclude that Ms Shires had deliberately and knowingly made a forensic decision to rely only on the information she had provided. She no doubt hoped that the information she provided would be sufficient to secure her a significantly lower penalty, but that is not the same as adopting a tactical position to which she should be bound. Importantly the nature of the burden Ms Shires needed to discharge to be given the benefit of s 120 of the Sentencing Act was not explained to her.
Having pointed out that the material which she did provide was insufficient, it was incumbent upon the Judge to enquire of Ms Shires if she wished an adjournment to provide further material which gave a complete and reliable account of her financial position.
Mr Shires was not accorded procedural fairness.
Ground 6 – Costs
The ERD Court exercises its summary criminal jurisdiction in the same manner as the Magistrates Court. Section 7 of the Environment, Resources and Development Court Act 1993 (SA) (the ERD Act) provides:
7—Jurisdiction
…
(3a)The Court will deal with a charge of a summary offence or a minor indictable offence in the same way as the Magistrates Court deals with such a charge (and in accordance with the procedures that would apply if the Magistrates Court were dealing with such a charge) and the Summary Procedure Act 1921 applies to the Court subject to any additions, exclusions or modifications prescribed by the regulations as if references to the Magistrates Court extended to the Court.
…
Section 189 of the Criminal Procedure Act1921 (SA) (formerly the Summary Procedure Act 1921 (SA)) provides the Magistrates Court, and thus the ERD Court, with wide discretion in the award of costs:
189—Costs generally
Subject to sections 189A to 189D (inclusive), the Magistrates Court may award such costs for or against a party to proceedings as the Magistrates Court thinks fit.
The ERD Court is intended to be a low-cost jurisdiction. Parties often appear unrepresented. Rule 1.3.2 of the Environment Resources and Development Court Rules 2003 (SA) provides:
1.3.2 It is acknowledged that the business of the Court will include proceedings involving parties who will not be represented by counsel, solicitor or other qualified representative familiar with these Rules. These Rules are not intended to frustrate the presentation of a case in good faith by a party not so represented, and the Rules are to be construed and applied accordingly, having regard to the duty of the Court, expressed in section 21 (1) (c) of the Environment, Resources and Development Court Act 1993.
In a case such as this, involving a purely pecuniary penalty, the cumulative effect of the fine should also be considered in the award of costs. There is some tension between the Judge’s decision to reduce the accumulation of the notional penalties on account of it being crushing, only to then award costs on an uplifted scale.
The appellant also submits that s 120 of the Sentencing Act encompasses all forms of pecuniary penalty, including costs, and that the Judge erred in failing to advise the appellant as to costs. I accept that submission. The appellant was never specifically invited to address the Court on the matter of costs. Immediately after the respondent’s submissions on costs, the Judge summed up the matters that the respondent had addressed, and invited the appellant to address his Honour on those matters. However, that approach was not sufficient. In circumstances where the respondent had made an application for costs above the ordinary cost scale, the Judge ought to have informed Ms Shires of the competing considerations and provided her the opportunity to make submissions.
I would set aside the order for costs on the Supreme Court scale. The facts were peculiar but not complex. More complex factual questions involving difficult questions of admissibility are regularly dealt with in the Magistrates Courts. Persons of little means should not be handed a cleft stick, one limb of which requires the engagement of a legal practitioner, and the other leading to an expensive adverse costs order. Seldom should the extra time it takes a litigant in person to grasp the fundamentals of a trial in a Magistrates Court, or the ERD Court, lead to a special costs order in favour of the prosecutor. After all, it is not an uncommon experience that engagement of a practitioner may also result, not only in a liability for the practitioner’s fee, but a prolongation of the trial.
Moreover, an order for costs on the Supreme Court scale would inevitably result in the application of s 120 of the Sentencing Act. I therefore set aside the order that Ms Shires pay the Council its costs on the Supreme Court scale. I order that Ms Shires pay the Council’s costs on the Magistrates Court scale, but give her liberty to make an application pursuant to s 120 of the Sentencing Act in respect of those costs if they are not agreed.
Sentencing material on the appeal
In the course of submissions, I was provided with an unsworn affidavit of the appellant which sought to support her submissions on her financial position. I indicated that if I allowed the appeal and resentenced the appellant, I was not prepared to accept the appellant’s account unless it was supported by sworn evidence. A further opportunity was provided to file further affidavit evidence for the purposes of sentencing.
Ms Shires filed on the appeal an affidavit sworn on 8 April 2021 and it was received into evidence. In addition to the assets already mentioned, Ms Shires disclosed an equitable interest of an unspecified nature over farming land at Eclair Mine Road, St Ives, with a capital value of $122,000. The registered proprietors are Mr Hutchinson and a Mr Michael Chapman. The appellant was again called to give further evidence on her financial position. Her evidence is summarised below.
The respondent too filed a further affidavit of Ms Mason sworn 25 May 2021. Ms Mason deposed to further development works on the property undertaken by the appellant and associated planning applications. It too was received into evidence.
The following tables setting out Ms Shires’ property interests were put before me:
Joint table of real property assets – rounded to the nearest dollar
Property Robert Brooke Valuation as at 11 May 2021[6] Latest Loan Balance Net Equity 52 Mulgundawah Rd $330,000 $205,882[7]
(ME Bank)
$124,118 6 Rachel St $140,000 $44,374[8]
(Westpac)
$50,000
(Mr Mann)[9]
$45,626 – Shires’ interest (1/32) $4,375 $72,187[10] –$67,812 – Hutchison’s interest (31/32) $135,625 $22,187 $113,438 9 Hurtle St, Woods Point $165,000 $125,519[11]
(NAB)
$39,481 – Shires’ interest (50%)[12] $82,500 nil $82,500 – Hutchison’s interest (50%) $82,500 $125,519 –$43,019 TOTALS – Shires alone $416,875 $278,069 $138,806 [6] Informant re-sentencing exhibit P2, p 27.
[7] Re-sentencing exhibit D1 p 19 balance as at 26 Mar 2021 of the two Flexible Home Loans, $124,083 + $81,799 (respectively).
[8] Re-sentencing exhibit D1 p 20 ‘Mortgage: 6 Rachel (Land Hold)’ balance as at 26 Mar 2021.
[9] The oral loan from Mr Mann of $50,000 (exh D1 at [19]-[20]; lender’s identity stated in XXN).
[10] The Westpac loan is not in evidence, but can be inferred to have been made jointly and severally to Shires and Hutchison. To avoid double-counting, each has been notionally allocated a 50% liability share (see also the Note). The loan from Mr Mann of $50,000 is attributed wholly to Shires.
[11] Re-sentencing exhibit D1 p 17 ‘NTH Home Loan’ balance as at 26 Mar 2021.
[12] Re-sentencing exhibit P3.
If the total liability for the joint Westpac loan is attributed to Ms Shires in light of Mr Hutchison’s incarceration, her adjusted subtotal reads as follows:
Property Current Value Latest Loan Balance Net Equity TOTALS – Shires alone $416,875 $300,256 $116,619 Extended table of real property assets – rounded to the nearest dollar
Property Current Value[13] Latest Loan Balance Net
EquityPast Value[14] Prior Loan Balance Historic Net Equity 52 Mulgundawah Rd $330,000 $205,882[15]
(ME Bank)$124,118 $290,000 $199,936[16]
(ME Bank)$90,064 6 Rachel St $140,000 $44,374[17]
(Westpac)
$50,000
(Mr Mann)[18]$45,626 $120,500 $80,000[19]
(assumed to be $40K Mr Mann; balance Westpac)$40,500 – Shires’ interest (1/32) $4,375 $72,187[20] –$67,812 $3,766 $60,000[21] –$56,234 – Hutchison’s interest (31/32) $135,625 $22,187 $113,438 $116,734 $20,000 $96,734 9 Hurtle St, Woods Point $165,000 $125,519[22]
(NAB)$39,481 $160,000 $127,442[23]
(NAB)$32,558 – Shires’ interest (50%)[24] $82,500 nil $82,500 $80,000 nil $80,000 – Hutchison’s interest (50%) $82,500 $125,519 –$43,019 $80,000 $127,442 –$47,442 TOTALS – Shires & Hutchison $635,000 $425,775 $209,225 $570,500 $407,378 $162,622 – Shires alone $416,875 $278,069 $138,806 $373,766 $259,936 $113,830 [13] 11 May 2021 – Informant re-sentencing exhibit P2, p 27.
[14] 14 August 2020, the date of sentencing submissions before the Environment Court – Exhibit P2, p 27.
[15] Re-sentencing exhibit D1 p 19 balance as at 26 Mar 2021 of the two Flexible Home Loans, $124,083 + $81,799 (respectively).
[16] Defendant’s sentencing bundle in the Environment Court, final page, balance as at 30 July 2020 of two ME Bank Flexible Home Loans, $120,500 + $79,436 (respectively).
[17] Re-sentencing exhibit D1 p 20 ‘Mortgage: 6 Rachel (Land Hold)’ balance as at 26 Mar 2021.
[18] The oral loan from Mr Mann of $50,000 (exh D1 at [19]-[20]; lender’s identity stated in XXN).
[19] No documents are in evidence. In the Environment Court in her sentencing submissions Ms Shires said, “Rachel Street, the land’s worth 58 [thousand dollars] and I owe 80 [thousand dollars] on it”: 14 Aug 2020 TX 65.13-.14.
[20] The Westpac loan is not in evidence, but can be inferred to have been made jointly and severally to Shires and Hutchison. To avoid double-counting, each has been notionally allocated a 50% liability share (see also the Note further below). The loan from Mr Mann of $50,000 is attributed wholly to Shires.
[21] On the assumption that the ‘80’ was approximately $40,000 from Westpac and $40,000 from Mr Mann, half the (joint) Westpac loan is attributed to Shires together with the whole of Mr Mann’s loan.
[22] Re-sentencing exhibit D1 p 17 ‘NTH Home Loan’ balance as at 26 Mar 2021.
[23] Defendant’s sentencing bundle in the Environment Court, penultimate page, balance as at 30 July 2020 of ‘Home Loan #8242’.
[24] Re-sentencing exhibit P3.
If the total liability for the joint Westpac loan is attributed to Ms Shires in light of Mr Hutchison’s incarceration, her adjusted subtotal reads as follows:
Property Current Value[25] Latest Loan Balance Net
EquityPast
Value[26]Prior Loan Balance Historic Net Equity TOTALS – Shires alone $416,875 $300,256 $116,619 $373,766 $279,936 $93,830 [25] 11 May 2021 – Informant re-sentencing exhibit P2, p27.
[26] 14 August 2020, the date of sentencing submissions before the Environment Court – Exhibit P2, p27.
In cross-examination, Ms Shires accepted that the cost of the installation of the transportable was about $40,000. It was removed at a cost of about $3,000. She testified that Mr Hutchinson lent her $30,000 for the erection of the transportable and that she transferred the interest in Rachel Street on repayment of the loan. However, 94 per cent of the then value of $58,000 was $54,000. Ms Shires described the relationship with Mr Hutchinson as a close friend. They maintained separate residences but often lived in the same house. Money was not pooled, but they helped each other financially from time to time. Their relationship took ‘many different shapes’. She intended to make sure that ‘Ned was protected and catered for’.
The parties have agreed to put before me updated information on the value of the Mulgundawah Road property to the effect that property values in Murray Bridge have increased by 18 per cent to 20 per cent between November 2021 and November 2022. Ms Shires does not accept that the Mulgundawah Road property has increased in value to that extent. It is an unusual property. I will proceed on the basis that there has been a 10 per cent increase. However, I am also informed that Ms Shires has incurred a debt of $100,000 in connection with the winding up of her business as a land agent referred to below.
Ms Shires has kept the Mulgundawah Road property by an arrangement with the ME Bank in which she has resumed mortgage payments and capitalised arrears of $25,000 by increasing her loan which is now in the sum of $225,000. Mr Shires’ net asset position has, therefore, deteriorated substantially.
The joint interest in Woods Point was to protect Ms Shires’ interest in it. Ms Shires is renting it at $172 per week because she had to move out of Mulgundawah Road. The rent pays the mortgage. Mulgundawah Road was Ms Shires’ primary residence but was also leased in part to others. There were four tenancies. It is a rooming house which has 21 rooms and four bathrooms. The rent may vary from nil to $700 per week. Ms Shires budgets on a rental income of between $12,000 to $20,000 per annum. Ms Shires also testified that she is indebted to a Mr Brenton Mann in the sum of $50,000 for money advanced to her in respect of legal expenses and for $40,000 advanced to purchase Rachel Street.
Ms Shires’ commission revenue is $5,736 per month with business expenses estimated to be $6,000 per month. By letters dated 15 February 2022 and 9 November 2022 solicitors for the appellant confirmed that the Commissioner of Consumer Affairs’ decision to disqualify Ms Shires as a land agent has been confirmed following an internal SACAT review. A trust account administrator and a manager of her agent’s portfolio have been appointed.
I was also informed that Ms Shires is now the sole carer of a child born to her on 2 April 2022. Her sole means of support is a Sole Parenting Benefit of $933.60 per fortnight supplemented by earnings of about $288 per fortnight by her employment in hospitality.
Resentencing
I am unable to find on balance that the financial matters are precisely as Ms Shires states. However, her business is plainly a marginal one leaving her with very little disposable income. I accept that her net equity is now probably not much over $20,000. There is a substantial risk that if she were to attempt to liquidate her equity in her real estate assets she may be left without accommodation.
The primary offences are Counts 1 and 3, placement of the hut and construction of the amenities block respectively, and the consequential use of the land and those fixtures as office space and a residence without approval, Counts 5 and 6 respectively. Save for the operation of s 120 of the Sentencing Act I would have imposed the following penalties. I would have imposed a fine of $9,000 on Count 1. I would have imposed a fine of $1,200 on Count 2 having regard to its close relationship, in the sense of being a failure to remove the unapproved works the subject of Count 1. I would have imposed a fine of $6,000 on Count 3 having regard to the circumstance that it was an extension of the unapproved work the subject of Count 1. I would have imposed a fine of $600 on Count 4 because of its close connection to the offending in Count 3. I would have imposed a fine of $1,500 on each of Counts 5 and 6. I have had regard to the circumstance that those offences are connected to the development and that the uses were not, in themselves, extravagant. They were also of short duration. I would have imposed a fine of $900.00 on Count 7. The total penalty is $20,700. I would reduce the fines on each count by one-third pursuant to s 120 of the Sentencing Act because I am satisfied that the defendant would be unable to comply with an order to pay $20,700 given her precarious financial position having regard to the order for costs, on the ordinary scale, made in paragraph [76] above.
The fines I impose are:
Count 1 $6,000.00
Count 2 $ 900.00
Count 3 $4,000.00
Count 4 $ 400.00
Count 5 $1,000.00
Count 6 $1,000.00
Count 7 $ 600.00
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