Truong v City of Bayswater
[2014] WASC 459
•4 DECEMBER 2014
TRUONG -v- CITY OF BAYSWATER [2014] WASC 459
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 459 | |
| 04/12/2014 | |||
| Case No: | SJA:1028/2014 | 3 DECEMBER 2014 | |
| Coram: | MITCHELL J | 3/12/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | PETER TRUONG CITY OF BAYSWATER |
Catchwords: | Criminal law Appeal against conviction Plea of guilty Appeal against sentence Building without a building licence Turns on own facts |
Legislation: | Nil |
Case References: | Chan v The Queen (1989) 38 A Crim R 337 Knight v The State of Western Australia [2014] WASC 57 Meissner v R [1995] HCA 41; (1995) 184 CLR 132 Paolucci v Town of Cambridge [2013] WASC 50 Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 Wilhelm v The State of Western Australia [2013] WASCA 188 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF BAYSWATER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R YOUNG
File No : PE 48351 of 2012
Catchwords:
Criminal law - Appeal against conviction - Plea of guilty - Appeal against sentence - Building without a building licence - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr D P Gillett
Solicitors:
Appellant : In person
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Knight v The State of Western Australia [2014] WASC 57
Meissner v R [1995] HCA 41; (1995) 184 CLR 132
Paolucci v Town of Cambridge [2013] WASC 50
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81
Wilhelm v The State of Western Australia [2013] WASCA 188
Wilson v The State of Western Australia [2010] WASCA 82
- MITCHELL J:
(This judgment was delivered extemporaneously on 1 December 2014 and has been edited from the transcript.)
Background
1 On 9 April 2014, the appellant pleaded guilty in the Magistrates Court to an offence of proceeding with a building on land in the City of Bayswater without the respondent having approved the building by the issue of a building licence. This was an offence against s 374(1)(a) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (Act). The Magistrates Court convicted the appellant of that offence on that day.
2 Section 374 of the Act was repealed, on 2 April 2012, by s 153 of the Building Act 2011 (WA). A broadly equivalent offence was enacted in s 9 of the Building Act.
3 The facts recited by the prosecution were that the appellant was an owner of property in Morley. On 10 December 2010, the appellant applied to the respondent for a building licence to construct a single house on the land. On the same date he separately applied for planning approval under the respondent's local planning scheme. It was alleged that, on 18 January 2011 and 3 October 2011, emails were sent to an address shown on the building licence application indicating that a building licence could not be issued because further information was required. In mid-2012, officers of the respondent discovered that substantial work had commenced on the house without a building licence having been issued.
4 Counsel for the respondent indicated that the appellant was spoken to by officers of the respondent, and had indicated that he had taken a planning approval, which had been granted on 4 August 2011, to be the authority to commence building works. Counsel also indicated that the appellant had admitted that he had previously undertaken development for which both planning approval and a building licence was required, and admitted that work had commenced on 18 January 2011 (which was before planning approval had been granted but after the emails referred to above had been sent).
5 The appellant speaks Vietnamese and speaks and writes very little English. His communications with the Magistrates Court were conducted through an interpreter. The appellant indicated that he had not received the first email, but had received the second notice (albeit by post rather than email). He said that when he got the second notice, he thought that the building licence had been granted. He said that he had been through the building process once before in the City of Stirling. He gave the magistrate some personal details, said that he had not made any money when the Morley property was sold (unfinished) and that he would like to apologise.
6 The magistrate then fined the appellant $10,000 and ordered that he pay the City's legal costs of $4,286.70.
7 On 15 April 2014, the appellant filed an appeal notice in this court, which was in ambiguous terms. When the matter came on for hearing before Jenkins J in this court on 25 August 2014 the appellant, who appeared without representation, indicated that he intended to appeal against both his conviction and the sentence imposed. The respondent was taken by surprise at that, as its counsel had prepared the case on the basis that it involved an appeal against sentence only. The hearing of the appeal was adjourned to enable counsel for the respondent to prepare for an appeal against conviction, and for the appellant to file the evidence he wished to rely upon to show that the plea of guilty should be set aside. Justice Jenkins made orders which included adjourning the appeal until 24 October 2014, and requiring that the appellant file any additional affidavit material by 15 September 2014.
8 The appellant did file an affidavit sworn on 15 September 2014. Annexed to the affidavit is a type written account of certain events which was evidently written by the appellant's wife.
9 On 24 October 2014, the appellant appeared before me with the assistance of an interpreter, Ms Nguyen. Ms Nguyen interpreted proceedings for the appellant, and appeared to me to do so effectively. However, during the course of discussions about procedural matters, it emerged that Ms Nguyen was also the interpreter who assisted the appellant to communicate with the Magistrates Court when he pleaded guilty on 9 April 2014. The appellant also indicated to me, at that time, that Ms Nguyen had incorrectly translated his purported plea of guilty and had pressured him to plead guilty. In those circumstances it was obviously inappropriate for Ms Nguyen to continue to act as an interpreter on the appeal, and so I was required to adjourn the hearing of the application for leave to appeal and the appeal to today. I also made directions for the filing of further affidavits.
10 The appellant clearly has limited English, and very limited exposure to and understanding of the court process. He is self-represented in this court, and has communicated with the court using the assistance of an interpreter. It is therefore appropriate to give him some latitude in relation to formal deficiencies in the documents which he has prepared. However, it is still necessary that there be established a lawful basis for allowing the appeal and the court can only act on evidence which is admitted either according to the rules of evidence, or with the consent of the respondent.
11 I shall treat the notice of appeal as seeking to appeal against the appellant's conviction on the ground that there has been a miscarriage of justice1 and as appealing against sentence on the ground that the Magistrates Court imposed a sentence that was excessive2.
Appeal against conviction
12 An appeal against conviction may be instituted even though the decision to enter a conviction was made after a plea of guilty: see s 8(2) of the Criminal Appeals Act.
13 However, as Hall J recently noted in Knight v The State of Western Australia3 [27], an appellate court will approach an attempt to set aside a conviction based on a plea of guilty with 'caution bordering on circumspection'. The appellant must demonstrate that there has been a miscarriage of justice before the court will set aside his conviction based on a plea of guilty.
14 In Wilhelm v The State of Western Australia4[51] - [53] Mazza JA, with whom other members of the Court of Appeal agreed, observed:
An accused person may enter a plea of guilty for reasons other than a belief in his or her guilt. For example, a person may plead guilty to avoid worry, inconvenience or expense; to avoid publicity; to protect family or friends; or in the hope of obtaining a more lenient sentence than he or she would if convicted after trial. The entry of such a plea is valid and a conviction based upon it will not be set aside unless it can be shown that a miscarriage of justice has occurred: Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 (157) (Dawson J).
As I explained in Moncur v Pilgrim [2012] WASCA 131, it is not easy to persuade a court to set aside a plea of guilty. Although cases where a court will set aside a plea of guilty cannot be exhaustively identified, there are three well-recognised circumstances which will justify, by themselves or in combination, the setting aside of a plea of guilty. They are:
1. Where the appellant did not understand the nature of the charge or did not intend to admit guilt.
2. If upon the admitted facts, the appellant could not, in law, have been guilty of the offence.
3. Where the plea of guilty was obtained by improper inducement, fraud, intimidation or the like [37].
If it appears to a sentencing judge that a plea of guilty is not unequivocal and not made in circumstances suggesting that it is a true admission of guilt, it cannot be accepted and the court is obliged to enter a plea of not guilty: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 (511).
15 In considering the manner in which the appellant's plea was entered, it is relevant to note some additional matters concerning proceedings in the Magistrates Court. The prosecution notice was signed on 13 September 2012. The appellant did not attend the first appearance on 19 October 2012 and was convicted in his absence under s 55 of the Criminal Procedure Act 2004 (WA). At that time a fine of $15,000 plus daily penalties totalling $7,600 were imposed, together with an order that the appellant pay the respondent's costs of $1,506.70. On 18 October 2013, the appellant successfully applied to set aside his conviction and the matter was adjourned to 24 December 2013. On 24 December 2013, the appellant pleaded not guilty and the matter was adjourned to 4 February 2014. On 4 February 2014, the matter was listed for trial on 9 April 2014, with a note by the court that a Vietnamese interpreter would be required.
16 On 9 April 2014, the appellant appeared with the assistance of an interpreter, who I am satisfied was Ms Nguyen. The prosecutor indicated his understanding that there was a plea change. The magistrate read the charge and asked the appellant whether he understood what he was charged with. The appellant, through Ms Nguyen, responded 'yes'. The magistrate then said:
Okay. Now, the matter is set down for trial today. Are you maintaining a plea of not guilty, or is there some change in that position?
- The appellant, through Ms Nguyen, responded:
Today I plead guilty, sir.
18 The appellant filed a further affidavit dated 24 October 2014, as did his wife, Mrs Truong. Mrs Truong deposed, in effect, that the night before the last hearing in the Magistrates Court a man from the City of Bayswater rang her on her telephone and told her that she and the appellant should plead guilty to the charge. She does not, in terms, say that the interpreter mistranslated, but said that the interpreter 'was not explaining enough for what [the appellant] needed to say' and that he 'felt she body languaged him to settle down and he was put down as pleaded guilty'. Mrs Truong says that the appellant was confused and just went along with the interpreter who told him to plead guilty. The appellant agreed with that account of his wife. He said that 'I am sorry for what has been interpreted from the transcripts because it is not my meaning (not my interpretation)'.
19 I note that today Mrs Truong suggested that the translators, both in the Magistrates Court and this court, did mistranslate what the appellant was saying. However, this was a view reached apparently because she did not agree with what was being translated. I do not accept her evidence that there has been a mistranslation.
20 The respondent has filed an affidavit of Ms Nguyen, who deposes that she did not speak to the appellant before his matter was called on in the Magistrates Court and that she simply translated, accurately, what the appellant and the magistrate said to each other. She was not cross-examined on that affidavit.
21 There is no dispute that the appellant understood the nature of the charge he was facing on 9 April 2014. He accepted as much on 24 October 2014 (ts 14 - 15).
22 By 9 April 2014, the appellant must also have understood the difference between a plea of guilty and not guilty. He had, by that time, had the earlier conviction set aside, and indicated on 24 October 2014 that he understood that the matter had been listed for trial on 9 April 2014.
23 Despite having indicated to the contrary on 24 October 2014, today the appellant accepted that Ms Nguyen correctly translated his plea of guilty.
24 Mrs Truong attempted to indicate in her evidence that the appellant did not intend to plead guilty. However, counsel for the respondent correctly objected to that evidence on the basis that Mrs Truong could not give evidence about her husband's intention. In any event, given what the appellant has told me today, I conclude that the appellant did intentionally plead guilty to the offence of which he was subsequently convicted.
25 Having regard to all the evidence, I am satisfied that the appellant understood the nature of the charge which he faced on 9 April 2014, and intended to plead guilty to that charge. This is clearly not a case where, upon the admitted facts, the appellant could not, in law, have been guilty of the offence of which he was convicted.
26 There is no reliable evidence before me that the appellant's plea of guilty was obtained by improper inducement, fraud, intimidation or the like. The annexure to the appellant's affidavit sworn on 15 September 2014 indicates (apparently from the appellant's wife's perspective) that:
The night before a person from the City of Bayswater has rang us, he stated for [the appellant] to plead guilty and told me that it was a good idea as I can tell the judge our side of story and we will not face a lot of fine if we have a chance to speak up.
27 Similar statements were made by the appellant and his wife in their most recent affidavits.
28 I am not satisfied that this conversation, if it occurred and if it was relayed to the appellant, would involve obtaining the appellant's plea of guilty by improper means. As Dawson J noted in Meissner v R,5 when considering what would amount to persuading an accused person to plead guilty by improper means for the purposes of an offence of attempting to pervert the course of justice, merely to reason with an accused, pointing out the advantages of pleading guilty or the disadvantages of pleading not guilty, will not constitute improper means. The account given by the appellant's wife is consistent with the appellant appreciating that there were advantages to pleading guilty, and freely entering a plea of guilty in order to obtain those advantages.
29 It is also significant to note that the material before me does not indicate to me that the appellant had any defence to the charge. It appears to be common ground that building work was undertaken in the period of 1 November 2011 to 1 April 2012. There is no evidence before me indicating that a building licence was, in fact, granted before the appellant proceeded with the building, and the affidavit evidence of the officer of the respondent was that a building licence had not been granted. The evidence before me does not suggest the availability of any other defence which the appellant might have to the charge if the conviction were set aside and the matter remitted to the Magistrates Court for trial.
30 In reaching that conclusion I have considered whether the appellant's belief that the construction of the building had been authorised could provide him with a defence.
31 So far as that belief constituted a mistaken belief of law as to whether a building licence was required, it would not excuse the charged acts: s 22 of the Criminal Code (WA).
32 The evidence produced by the respondent excludes, beyond reasonable doubt, the possibility that the appellant was reasonably mistaken as to whether the planning approval was, in fact, a building licence, so as to possibly have a defence under s 24 of the Criminal Code. The planning approval was subject to an express condition that 'a building licence application must be obtained prior to the commencement of any building works'. It had an express advice note that the planning approval was not a building licence. The covering letter to the planning approval referred to the need for a building licence in capitalised text which was, at some points, in bold and underlined.
33 It may well be that the appellant did not read or understand the letter enclosing the planning approval, which is annexure NT6 to the affidavit of Mr Towill. However, if he did not read or understand that letter then it could not reasonably provide a basis for believing that a building licence had been granted. The appellant has not pointed to any other document capable of giving rise to a reasonable belief that a building licence had been granted prior to the commencement of construction of the building.
34 For the purpose of resolving this appeal it has not been necessary for me to reach any conclusion about whether two emails, dated 18 January 2011 and 3 October 2011, were received by the appellant or his wife. In the Magistrates Court the appellant accepted that he received the second but not the first of those emails. Before me the appellant and Mrs Truong indicated that they had seen neither. Whether or not that is the case, the evidence as a whole does not, in my view, provide any foundation for apprehending that s 24 of the Criminal Code might apply.
35 In all of the above circumstances, I am not satisfied that there is any miscarriage of justice in the appellant being convicted on his plea of guilty of the offence with which he was charged.
Appeal against sentence
36 As McLure P and Owen JA noted in Wilson v The State of Western Australia:6
The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King(1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
37 The material filed by the appellant does not assert any express error made by the magistrate in sentencing the appellant to a fine of $10,000, and my review of the transcript did not reveal any such error. There is no basis in this case for suggesting that the totality principle has been infringed. I shall therefore treat the appeal against sentence as an appeal on the ground that the sentence imposed was manifestly excessive.
38 Whether a sentence is manifestly excessive (or inadequate) requires a consideration of the maximum penalty for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant, the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender.7
39 In the present case the maximum penalty was a fine of $50,000 and a daily penalty of up to $5,000 for each day during which the offence continued. No daily penalty was imposed, although it would have been open to the magistrate to do so.
40 The appellant's conduct appears to me to fall within the mid-range of seriousness of the offence of proceeding with a building without the prior issue of a building licence. The building constructed was a house which was to be used as a residence, and was therefore a substantial work. The appellant did not, in the end, obtain any substantial profit from the venture. I do not see anything exceptional in the character of this particular offence. It is not the most serious offence of its kind, nor is it the least serious. The appellant's mistaken belief that he had the authority required to commence construction is a mitigating factor.
41 In Swan Bay Holdings Pty Ltd v City of Cockburn8 Hasluck J observed, in relation to penalties imposed for contravention of planning controls under the Planning and Development Act 2005 (WA), that:
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.
42 In my view, the same observations are applicable in relation to the offence of proceeding with a building without a building licence.
43 The quantum of the fine imposed in this case has not been shown to be outside the range of penalties customarily imposed for an offence of the present type.
44 For example, in Paolucci v Town of Cambridge,9 penalties totalling $11,120 and $15,180 were imposed on appeal for offences under s 374(1) by an owner and builder respectively, where the works comprised the alteration of an existing building by the construction of a garage, rather than the approved carport. The works in this case are considerably more substantial than those in Paolucci. The works in this case involved the partial construction of a house as opposed to simply a garage. However, in Paolucci the personal benefit derived was greater. The results of other cases referred to in Edelman J's reasons in Paolucci do not indicate that the penalty imposed in this case departed from the standards of sentencing customarily imposed for offences of this type.
45 The appellant indicated to the magistrate that he works in a family-owned bakery, but does not earn any income from that business. He owns his own house which is subject to a substantial mortgage. He is married and he and his wife have three children aged 21, 13 and 11 years. His wife is a full-time carer for their youngest child. After the date of the offence the appellant sold the Morley property, with the house part-constructed, and did not make a profit from the sale. He does not have any previous convictions, and he apologised to the Magistrates Court and the respondent for the offence. While the appellant's personal circumstances are a relevant and mitigating factor, they must be balanced against the need for general deterrence and do not of themselves make the imposition of a significant fine inappropriate.
46 Having regard to all of the above circumstances, I am not satisfied that the sentence is manifestly excessive.
Leave to appeal
47 The appellant requires leave to appeal for each ground of appeal.10 Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding.11 In this case the application for leave was ordered to be heard at the same time as the appeal.
48 For the above reasons I am not satisfied that there is any ground for appealing against either the conviction or sentence in this case which has any reasonable prospect of success. Leave to appeal is therefore refused on the sole ground identified in the appeal notice, with the consequence that the appeal is taken to have been dismissed under s 9(3) of the Criminal Appeals Act. If leave had been granted I would have dismissed the appeal.
1 Section 8(1)(b) of the Criminal Appeals Act 2004 (WA).
2 Section 8(1)(a)(iii) of the Criminal Appeals Act.
3[2014] WASC 57.
4 [2013] WASCA 188.
5 [1995] HCA 41; (1995) 184 CLR 132.
6 [2010] WASCA 82 [2].
7Chan v The Queen (1989) 38 A Crim R 337, 342.
8 [2010] WASC 81 [74].
9 [2013] WASC 50.
10 s 9(1) of the Criminal Appeals Act.
11 s 9(2) of the Criminal Appeals Act.
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9
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