Wildan Properties Pty Ltd v City of Bunbury
[2016] WASC 188
•23/06/16
WILDAN PROPERTIES PTY LTD -v- CITY OF BUNBURY [2016] WASC 188
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 188 | |
| Case No: | SJA:1046/2015 | 20 NOVEMBER 2015 | |
| Coram: | PRITCHARD J | 23/06/16 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | WILDAN PROPERTIES PTY LTD CITY OF BUNBURY |
Catchwords: | Appeal against sentence Application for leave to appeal against sentence Offence under s 41(2) of the Building Act 2011 (WA) Occupancy of a building without an occupancy permit Whether sentence manifestly excessive |
Legislation: | Building Act 2011 (WA) Building Regulations 2012 (WA) Building Regulations 2012 (WA) Criminal Appeals Act 2004 (WA) Criminal Procedure Regulations 2005 (WA) Health Act 1911 (WA) Local Government (Miscellaneous Provisions) Act 1960 (WA) Planning and Development Act 2005 (WA) Sentencing Act 1995 (WA) |
Case References: | Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39; (2012) 187 LGERA 122 Chan v The Queen (1989) 38 A Crim R 337 Evans v Richards [2015] WASC 53 Guest v Commissioner of Taxation (No 2) [2007] FCA 412 Hollywood v City of Joondalup [2010] WASC 306; (2010) 178 LGERA 252 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Mack v The State of Western Australia [2014] WASCA 207 Paolucci v Town of Cambridge [2013] WASC 50; (2013) 193 LGERA 388 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Steelmakers Pty Ltd v City of Swan [2014] WASC 449 Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CITY OF BUNBURY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K T FISHER
File No : BU 5909 of 2014
Catchwords:
Appeal against sentence - Application for leave to appeal against sentence - Offence under s 41(2) of the Building Act 2011 (WA) - Occupancy of a building without an occupancy permit - Whether sentence manifestly excessive
Legislation:
Building Act 2011 (WA)
Building Regulations 2012 (WA)
Building Regulations 2012 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Regulations 2005 (WA)
Health Act 1911 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA)
Planning and Development Act 2005 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr P J McQueen
Respondent : Mr D P Gillett
Solicitors:
Appellant : Lavan Legal
Respondent : McLeods Barristers & Solicitors
Cases referred to in judgment:
Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39; (2012) 187 LGERA 122
Chan v The Queen (1989) 38 A Crim R 337
Evans v Richards [2015] WASC 53
Guest v Commissioner of Taxation (No 2) [2007] FCA 412
Hollywood v City of Joondalup [2010] WASC 306; (2010) 178 LGERA 252
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Mack v The State of Western Australia [2014] WASCA 207
Paolucci v Town of Cambridge [2013] WASC 50; (2013) 193 LGERA 388
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Steelmakers Pty Ltd v City of Swan [2014] WASC 449
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81
Wilson v The State of Western Australia [2010] WASCA 82
Table of Contents
The development and the planning approval given by the City 6
The approval given by the Health Department for the installation of the ATU 7
Non compliance with the conditions imposed by the City and the Health Department 8
The Health Act offence and the Building Act offence 9
The submissions of counsel at the sentencing hearing 9
(i) Occupation of the building prior to the issue of an occupancy permit 9
(ii) Extent of Wildan's compliance with conditions 12
(iii) Characterisation of the offending 13
The plea of guilty 14
2. The learned Magistrate's reasons for imposing the sentence 15
Non-compliance with the conditions of approval 15
The gravamen of the charges 16
Factual findings in relation to the Building Act offence 16
Characterisation of the seriousness of the Building Act offence 17
Mitigating factors 17
The sentences imposed 18
3. The requirement for an occupancy permit legislative purpose 18
4. The basis for discerning implied error in the sentence imposed 22
5. Why the sentence imposed for the Building Act offence was manifestly excessive in
all of the circumstances 23
(a) The maximum penalty for the Building Act offence 23
(b) The standards of sentencing customarily observed in relation to offences of this
character 24
(c) The place which the criminal conduct occupies on the scale of seriousness of
offences of this type; aggravating and mitigating circumstances 26
(d) Wildan's individual circumstances 31
(e) Other matters 31
6. The sentence which should be imposed 33
7. The orders which should be made 34
1 PRITCHARD J: On 19 May 2015, Wildan Properties Pty Ltd (Wildan) was convicted in the Magistrates Court at Bunbury of two offences, following a plea of guilty to each charge. One was an offence against s 41(2) of the Building Act 2011 (WA) (the Building Act). The terms of that charge were that between 16 July 2014 and 10 October 2014, at East Bunbury, Wildan, as the owner of a completed building, permitted the use of the building without an occupancy permit being in effect for the building (the Building Act offence). The other conviction was a charge under the Health Act 1911 (WA) (the Health Act offence). That offence is discussed further below.
2 Wildan was fined $120,000 in respect of the Building Act offence. It now appeals against that sentence.1 It does not appeal the sentence imposed in respect of the Health Act offence.
3 Wildan requires the grant of leave in order to proceed with its appeal.2 The grant of leave requires that the Court be satisfied that the ground of appeal has a reasonable prospect of succeeding.3
4 For the reasons outlined below, leave to appeal will be granted, the appeal will be upheld, the sentence imposed by the learned Magistrate in respect of the Building Act offence will be set aside, and a fine of $90,000 will be imposed in respect of the offence.
5 In these reasons, I deal with the following matters:
1. The facts relevant to the offences of which Wildan was convicted;
2. The learned Magistrate's reasons for imposing the sentence;
3. The requirement for an occupancy permit - the legislative purpose;
4. The basis for discerning implied error in the sentence imposed;
5. Why the sentence imposed for the Building Act offence was manifestly excessive in all of the circumstances;
6. The sentence which should be imposed; and
7. The orders which should be made.
1. The facts relevant to the offences of which Wildan was convicted
6 At the sentencing hearing, both counsel for the City of Bunbury (the City) and counsel for Wildan made lengthy oral submissions in relation to the facts relevant to the offences. Counsel for Wildan did not make any formal admission of the facts referred to by counsel for the City. While he did not contradict many of the facts, he expressly disputed some of them.
7 The learned Magistrate managed to distil the facts relevant to sentencing from the lengthy submissions of counsel. His task was, no doubt, made more difficult because the facts were not reduced to writing, and because of the dispute which had been identified in relation to some of them. It is appropriate to observe that in the case of regulatory prosecutions such as this, the facts relating to the offence, or the legislative regime pertaining to the offence, can be complex. In that event, the expeditious and efficient conduct of sentencing proceedings is likely to be assisted if the facts the prosecution says are relevant to sentencing are reduced to writing and counsel endeavour to confer about those facts in advance of the hearing. That course is especially desirable in relation to prosecutions in the Magistrates Court, where magistrates are required to deal with a very large number of diverse matters each day.
8 The learned Magistrate concluded that the matters in dispute did not require resolution through a trial of the issues before Wildan could be sentenced. No complaint is made about that conclusion.
9 There remained some dispute, even at the hearing of the appeal, about some of the facts. Those disputes were not reflected in any ground of appeal, but were implicit in some of the submissions made by counsel in relation to the question of whether the sentence under appeal was manifestly excessive. I discuss those matters below.
10 In order to understand the learned Magistrate's findings in relation to the facts of the Building Act offence, and his conclusion in relation to the seriousness of that offence, it is necessary to have an understanding of the submissions put to him by counsel about the facts.
The development and the planning approval given by the City
11 The offences of which Wildan was convicted related to the development of land at Lots 111 and 112 Mummery Crescent in East Bunbury (the Lots). Wildan wanted to develop the Lots for the purpose of conducting a vehicle hire business on the Lots. It proposed to construct a building for an office, workshop, storage and vehicle wash-down areas, and to construct a car park and vehicle display yard, on the Lots (the development).
12 In 2013, the City approved Wildan's application to develop the Lots. Counsel for the City described this as a planning approval,4 although it appears more likely that what was given was a building permit under the Building Act, which was subject to conditions.5 In any event, for convenience, I will refer to the approval as the planning approval. The planning approval was subject to a number of conditions. Two of those are of present relevance. The first was that the Lots be amalgamated into one certificate of title (the amalgamation condition). (This condition appears to have been imposed because Wildan proposed to construct a building on one lot, and the car park on the other lot, and the amalgamation of the Lots was required as a means of ensuring that adequate parking for the development would always be available.)
13 The second condition was that the City required that the Health Department give its approval for the installation of any alternative treatment unit (ATU) for the treatment of sewage and the disposal of effluent and liquid waste from the Lots (the ATU approval condition). The ATU approval condition was imposed because it was not intended that the development would be connected to reticulated deep sewerage; a standard septic tank system was not appropriate for the site; and because under the Health Act, the approval of the Health Department (rather than the City) was required for the installation of the proposed ATU, in view of the anticipated daily volume of waste water emanating from the Lots.
14 A building permit was issued by the City in November 2013 and construction of the development proceeded.
The approval given by the Health Department for the installation of the ATU
15 In November 2013, the Health Department approved the installation of the ATU that Wildan proposed to use. However, that approval was also subject to compliance with conditions imposed by the Health Department. The two main conditions imposed by the Health Department were as follows.
16 First, the Health Department also required the amalgamation of the Lots. That condition appears to have been imposed because the volume of waste water from the site was anticipated to exceed that permitted from a single lot, and the particular ATU which Wildan wished to install was not suitable in those circumstances. If the Lots were amalgamated, however, the combined waste water allowances for the two Lots would mean that the ATU in question would be adequate.
17 Secondly, the Health Department required that the bottom of the leach drains (which had to be constructed for use in conjunction with the ATU) be a minimum of 1.2 m above the highest known ground water level for the Lots.
Non-compliance with the conditions imposed by the City and the Health Department
18 The construction of the development was completed in about June or early July 2014, and a certificate of completion was lodged by Wildan's builder with the City at that time.
19 Although the installation of the ATU had been approved by the Health Department, Wildan was also required to obtain a permit from the City for its use. Under s 107 of the Health Act that permit had to be obtained before Wildan was permitted to use the ATU.
20 Wildan's plumber requested that the City's officers inspect the ATU which had been installed. On 16 July 2014,6 the City's officers inspected the Lots and found that the building was occupied, the business being conducted on the Lots was fully operational, and thus that the ATU was already in use.
21 As a result of that inspection it was discovered that various conditions of the Health Department's approval for the installation of the ATU had not been met. These included that the amalgamation of the Lots had not been undertaken and that the bottom of the leach drains was below the minimum of 1.2 m above the highest known ground water level for the area.
22 Wildan was advised that until the conditions imposed by the Health Department were met, a permit could not be issued by the City permitting the use of the ATU.
23 In addition, prior to commencing its occupation of the building on the Lots, Wildan had failed to obtain an occupancy permit from the City.
24 Wildan did not vacate the Lots while it obtained approval from the City for the use of the ATU, and an occupancy permit.
The Health Act offence and the Building Act offence
25 Wildan's use of the ATU without a permit from the City constituted an offence under s 107(4) of the Health Act. It was charged in respect of that use for the period 16 July 2014 to 10 October 2014. The terms of the Health Act offence charge were that Wildan permitted persons to use an apparatus for the treatment of sewage without the City having granted permission under s 107(5) of the Health Act for the apparatus to be used, contrary to s 107(4) of the Health Act.
26 By late July 2014 (when the prosecution was commenced), some of the issues in relation to the ATU had been resolved, but two conditions in relation to its installation remained in dispute. First, the City's officers remained of the view that the depth of the leach drains was less than the minimum depth of 1.2 m above the highest known ground water level for the area. Counsel for the City submitted that if the leach drains were not at the correct depth, there was a risk that sewage from the development would leak into the ground water system, creating potential environmental and health issues. In addition, the Lots had not been amalgamated.
27 It remained the position at the sentencing hearing that the City had not granted Wildan a permit for the use of the ATU, nor had it granted an occupancy permit for the building. Nevertheless, Wildan continued to use the ATU and to occupy the building.
28 As mentioned above at [1], Wildan's failure to obtain an occupancy permit prior to the use or occupation of the building constituted an offence under s 41(2) of the Building Act.
The submissions of counsel at the sentencing hearing
(i) Occupation of the building prior to the issue of an occupancy permit
29 Initially, counsel for Wildan submitted that the company had been advised by an officer of the City that if it entered into occupation of the premises on the Lots, it could continue to work through the issues in dispute with the City.7 That was disputed by counsel for the City.8 He submitted that a certificate of construction compliance and a notice of completion were provided by Wildan's builder to the City (and not by the City to Wildan) at the end of June 2014. He submitted that the City 'at no time gave permission for the building to be occupied despite there being no occupancy permit and no permit to use the [ATU]'.9 Counsel for Wildan did not adduce any evidence to support his submission that the City had given permission for Wildan to remain in occupation without an occupancy permit. It appears that counsel in effect did not pursue reliance on this contention as a mitigating factor, in view of the fact that the City disputed that that was so.
30 As counsel for Wildan developed his submissions, however, it appears that the case he ultimately advanced in his plea in mitigation was that Wildan was mistaken about its entitlement to occupy the building. Counsel for Wildan submitted that towards the end of June 2014, an inspection was conducted by officers of the City for the purpose of determining whether a certificate of technical compliance could issue. In the course of that inspection, certain issues were identified as requiring attention but the certificate of technical compliance was subsequently issued. Counsel for Wildan submitted that:10
[Wildan] occupied the premises under the mistaken belief that [Wildan] had all the certificates that were required. Obviously, as a matter of law, that's incorrect because [Wildan] didn't have a certificate of occupancy, but wasn't aware that one was required [and] … believed, albeit incorrectly, that it had what it needed.
31 Following conferral between counsel for Wildan and the City, counsel for Wildan referred the learned Magistrate to a number of documents. Regrettably, none of them appear to have been tendered, nor were available on the appeal.
32 Counsel for Wildan submitted that on 7 July 2014, Wildan's builder made an application for an occupancy permit, which was signed by Wildan's 'CFO' Ms Novak. On 21 July 2014, one of the City's officers contacted one of Wildan's directors by email, and pointed out a number of issues with respect to the ATU. That email was subsequently forwarded by Ms Novak to Wildan's builder. It also appears that there were communications between Wildan's architect and Ms Novak in relation to the matter on the same date.
33 Counsel for Wildan submitted that:11
[T]he builder and the plumber were charged with the responsibility on the same day as we were informed by the City about the … concerns regarding the [ATU].
And then over the weeks that followed, both the plumber and the builder were attending to that with the input of the architect and then in October … the material was supplied. During that period, there's no suggestion … that we were told that the occupancy certificate hadn't been granted or there was a problem with the occupancy certificate.
… On 21 October … we're told we don't have the occupancy certificate because of these areas of non-compliance. … So in short, we went in there, there was an inspection, we had the certificate of technical compliance.
Not being trained as builders or architects, my client mistakenly thought that was what was needed. … We didn't hear anything for a few months, but in the meantime we were, we say, working collaboratively together with our builder and our plumber to rectify the wastewater issues. And then we only became aware of the occupancy certificate issue in a formal sense on 21 October.
So whilst we didn't possess it, we didn't go in deliberately, knowing we required one. And I don't think there's any evidence to show that we were put on notice and went in despite that notice.
34 Counsel for the City disputed Wildan's claim that in view of the issue of the certificate of compliance by its builder, Wildan understood that it was entitled to occupy the building. Counsel for the City relied on the fact that Ms Novak signed the application for the occupancy permit on 7 July 2014 and submitted that Wildan was clearly aware of the need for the permit at that point, notwithstanding that the City did not subsequently advise Wildan that it needed an occupancy permit before it could occupy the building.
35 Counsel for the City also submitted that after the inspection was carried out by officers of the City on 16 July 2014, Wildan had been advised that an occupancy permit could not be issued until the conditions of planning approval for the development had been met, namely the amalgamation condition, and the ATU approval condition. In addition, on 9 October 2014 an email was sent by the City to Wildan advising that Wildan needed to fulfil the conditions of the Health Department's approval for installation of the ATU before an occupancy permit would be issued.
36 Counsel for the City submitted that in these circumstances, it was not open to Wildan to occupy the building and use the ATU for a period of three months simply on the assumption that its builder would attend to all requirements for approval, and without ensuring that the relevant permits were in place.
(ii) Extent of Wildan's compliance with conditions
37 Counsel for Wildan made a number of submissions in relation to the conditions which had been imposed in relation to the planning approval, with which the City claimed there had been no compliance. He submitted that non-compliance with those conditions was the reason why an occupancy permit had not been granted as at the date of the sentencing. The thrust of his submissions appeared to be that the conditions had, in substance, been met, or would imminently fall away, so that there was nothing which would prevent an occupancy permit being granted in due course, and so that the Building Act offence could be regarded as a merely 'technical' breach.
The amalgamation condition
38 Counsel for Wildan submitted that the terms of the planning approval had provided an alternative to satisfaction of the amalgamation condition, namely that a caveat be lodged on the certificate of title for one of the Lots to secure the provision of car parking on that Lot in order to serve the building which was to be constructed on the other Lot.12 He submitted that Wildan had been engaged in discussions with the City in relation to the removal of the amalgamation condition, on the basis that Wildan would execute a deed and lodge a caveat, with a view to securing the provision of parking for the development.
39 Counsel for Wildan also submitted that the imposition of the amalgamation condition by the Health Department was the result of an error by Wildan's own consultant in estimating the volume of waste water which would be discharged from the Lots. He submitted that that estimate was reviewed by Wildan's consultants in November 2014 and it was ascertained that the volume of waste water discharged from the Lots was below the limit above which the approval of the Health Department would be required for an ATU.
40 Counsel for Wildan submitted that Wildan had attempted to persuade the City that the amalgamation condition should be removed from the planning approval. However, those discussions had not resulted in an agreement with the City.13 In those circumstances, Wildan had made an application to the SAT in January 2015 for a review of the City's decision to impose the amalgamation condition (as a condition of its planning approval). However, that application had not been resolved by the date of the sentencing hearing.
41 Counsel for the City submitted that whatever the outcome of that review, it would not change the fact that the amalgamation of the Lots had also been required by the Department of Health as a condition of its approval for the installation of the ATU.
Depth of the leach drains
42 Counsel for Wildan submitted that the inspection of the depth of the leach drains which was carried out by the City's officers was inadequate. He submitted that since October 2014, Wildan had had confirmation from its builder and plumber that the leach drains were at the correct depth, and that as a result, there was no risk of environmental harm from the use of the ATU. Counsel for Wildan submitted that its consultants' views on the depth of the leach drains had been provided to the City in October 2014, but he acknowledged14 that there remained a dispute with the City in respect of the depth of the leach drains.
43 Counsel for Wildan submitted that that issue would also be the subject of proceedings in the SAT, which it was intended would be commenced shortly after the sentencing hearing.15
44 Counsel for the City submitted that this dispute stood in the way of the City granting approval for the use of the ATU, and that dispute had to be resolved before Wildan was entitled to commence using the ATU.16
(iii) Characterisation of the offending
45 Counsel for the City submitted that a substantial penalty was appropriate because Wildan was aware that no occupancy permit had been issued in respect of the building, that it had been advised at the time of the inspection carried out by the City's officers in July 2014 that that was the case, and had been advised what was required to be done in order to remedy the situation, but nevertheless remained in occupation of the building, and continued to do so as at the date of sentencing (seven months after the period the subject of the charge). He submitted that this was:17
[A] flagrant breach. [Wildan] was put on notice of the breach but the breach continued. And there's clearly a commercial aspect to this breach. It's a large building. The hire business that operates there is a related company to [Wildan] company which owns the land and, presumably, they wanted to kick on and get operating on the site, which is what they've done.
46 I note that no evidence was led in support of the submission that there was a 'commercial aspect' to the offending.
47 In contrast, counsel for Wildan submitted that this was not a flagrant breach of the law for commercial gain, but a technical breach which his client had been seeking to resolve.18 He submitted that:19
[T]his is not a case where [Wildan] has failed to seek an approval. It's a case where there's a difference of opinion between the prosecution and the applicant as to which approval is required and whether amalgamation is necessary.
- He also submitted that:20
[T]his is not an [accused] who has blindly ignored the regulatory regime; … [but rather an accused] that was let down by one of its consultants and then put in a position where requirements were imposed on it which were not, in fact, necessary in light of the technical reality.
The plea of guilty
49 On the first mention date (21 January 2015), the charges were adjourned until 26 February 2015. On that second occasion, a written plea of not guilty was entered by Wildan. The matter was then set down for trial on 19 May 2015.
50 Late on 18 May 2015, Wildan advised of its intention to plead guilty to the charges. Counsel for the City advised the learned Magistrate that the trial had been fully prepared by that stage.21
51 Counsel for Wildan indicated that the late plea of guilty arose from the fact that his client had been trying to resolve the issues in dispute and to avoid a trial and that 'there has never been any suggestion to the prosecution that we dispute the charges. It's just that we've been trying to work through the issues'.22
2. The learned Magistrate's reasons for imposing the sentence
52 The learned Magistrate delivered lengthy reasons for sentence. Rather than reproduce those reasons in full, it will suffice for present purposes to summarise his Honour's findings on the factual issues which had been raised before him, and then to refer to the reasons he gave for the sentences he imposed.
Non-compliance with the conditions of approval
53 His Honour began with some observations in relation to Wildan's explanation of the circumstances in which the offences had been committed. He referred to the submission by counsel for Wildan that the erroneous estimate of the waste water which would be discharged from the Lots had resulted in the City concluding that this was a case in which the Health Department's approval was required for the ATU. And he noted that Wildan intended to apply for a review by the SAT of that decision.23
54 The learned Magistrate also noted that Wildan had taken steps to pursue the 'alternative to the amalgamation'.24 By that remark, his Honour appears to have been referring to the option of lodging a caveat over the title to one of the Lots, rather than amalgamating the Lots. He concluded that in view of the pursuit of that option, the amalgamation condition was 'but part of the historical statement [of facts] and not necessarily, at this juncture … of great moment'25 (at least as a discrete condition of the planning approval, if not of the Health Department's approval of the installation of the ATU).
55 His Honour also noted that there had been compliance with the remaining conditions (by which his Honour appears to have been referring to conditions for approval of the installation of the ATU), save in one respect. That was that there remained a dispute concerning the depth of the leach drains.26 His Honour noted that that matter was also to be the subject of an application for review by the SAT.27 His Honour concluded that the uncertainty in respect of that condition did not preclude him from proceeding to sentence Wildan for the offence. He formed that view because there was no dispute that there was a period of ongoing non-compliance during the period covered by the charge for the Health Act offence, and counsel for the City did not seek more than the imposition of the minimum daily penalty in respect of that charge.28
The gravamen of the charges
56 His Honour concluded that the gravamen of the Health Act offence was the use of the ATU without having first obtained the grant of a permit to use the apparatus.29
57 As for the Building Act offence, his Honour concluded that the gravamen of that charge was permitting the use or occupancy of the building, or using the building, without first obtaining an occupancy permit.30
Factual findings in relation to the Building Act offence
58 His Honour noted that the relevant agreed facts in respect of that occupancy were the subject of substantial agreement.31 His Honour noted that Wildan took up occupancy in early June 2014, without having either the necessary authority to use the ATU, or the occupancy permit.32
59 The learned Magistrate noted the explanation advanced by counsel for Wildan that when its builder issued the certificate of technical compliance, Wildan mistakenly believed that it was then entitled to occupy the building.33 He noted, however, that on 7 July 2014, Wildan's builder applied for the occupancy permit from the City, but that it was not issued.34 The learned Magistrate therefore concluded that Wildan's asserted mistake as to its entitlement to occupy following the issue of the certificate of technical completion by its building was of 'no great moment' in terms of mitigation.
60 The learned Magistrate rejected the submission by counsel for Wildan that the lack of any response by the City to the application for the occupancy permit was the reason why the unauthorised occupancy persisted. He considered that in the absence of a response, it would have been a simple matter to make enquiries of the City in relation to the application.35
61 The learned Magistrate also noted that Wildan had offered no specific explanation for why it had occupied the building without an occupancy permit, or 'as to what otherwise underlay the urgency of the situation'36 apart from its claim that it held a mistaken belief, based on its builder's certificate of technical compliance, that it was entitled to occupy the building. His Honour observed that:37
[I]t would seem at this point in time there was some degree of urgency by [Wildan] to occupy the building and in doing so failed to take the necessary advice … of the contractor builder as to when it was permissible to occupy and I can only infer from the conduct and the … application by the builder … seeking a certificate of occupancy - that [Wildan] took up occupation without reference to those persons who might be better informed.
- The learned Magistrate then concluded that:38
[T]here has been, with the flux of time, some commercial expediency obtained by the defendant … in the continuing … failures to meet the obligations, and particularly the permit to occupy'.
62 The learned Magistrate's conclusion as to the seriousness of the Building Act offence was as follows:39
I don't agree with the submission that this is in every respect a technical breach and nor do I agree that it's a matter that falls toward the bottom of the scale. Whether or not the occupation occurred as a matter of commercial expediency, the consequences are … that it has had that effect. So [in] my respectful view, this matter was not at the top end of the scale of offending. It is certainly beyond the order of contemplated conduct.
Mitigating factors
63 The learned Magistrate then turned to the mitigating factors in this case. The first was Wildan's plea of guilty, and the utilitarian benefit which followed from the fact that the charges did not proceed to trial (belated though the plea was).40
64 Secondly, his Honour noted that Wildan had no prior record.41
65 Thirdly, he took into account that Wildan had endeavoured to cooperate with the City to work towards a resolution of its dispute with the City, including, ultimately, through the application to the SAT.42
66 His Honour placed no weight on the submission by counsel for Wildan that there was no risk to the environment as a result of the depth of the leach drains, because that submission was premised on Wildan's view that the drains were at the correct depth, a matter about which there remained a dispute.43
The sentences imposed
67 In respect of the Health Act offence, the learned Magistrate imposed a fine of $15,500, comprising a fine of $1,500 plus daily penalties amounting to $14,000. In reaching the quantum of that fine, the learned Magistrate had regard to the plea of guilty, and to Wildan's cooperation with the City. (The total maximum penalties liable to be imposed in respect of that offence were a fine of $5,000 and daily penalties of $28,000.44) As I have already noted, Wildan does not appeal that sentence.
68 In respect of the Building Act offence, the learned Magistrate considered that the appropriate starting point was a fine of $150,000. He then gave a 15% discount under s 9AA of the Sentencing Act 1995 (WA) (the Sentencing Act) for the plea of guilty. With a further discount for Wildan's cooperation with the City, his Honour settled on a fine in the sum of $120,000 as the appropriate penalty for the offence.
3. The requirement for an occupancy permit - legislative purpose
69 In order to make an assessment of the seriousness of the Building Act offence, it is necessary to understand the legislative purpose behind the requirement for an occupancy permit. That purpose can be discerned from the provisions of the Building Act.
70 The long title to the Building Act indicates that amongst other things, the Act provides for standards for the construction and demolition of buildings. Self-evidently, real and significant risks to public health and safety may result if buildings are not constructed in accordance with applicable standards governing design, construction, and health and safety. The provisions of the Building Act in relation to occupancy permits appear to me to be directed to the objective of ensuring that those standards are met; that regulators are able to confirm that that is so in a streamlined, cost effective and expeditious fashion; and that members of the public can have confidence that those standards are being observed.
71 In order to understand how that is so, it is helpful to recall the point in time and process at which an occupancy permit must be sought. It is convenient to do so for present purposes by reference to the requirements applicable to a newly constructed building. The prohibition on occupation or use of a building without an occupancy permit applies in respect of a 'completed building'.45 In respect of newly constructed buildings, the requirement to obtain a certificate of occupancy arises when the construction process has been completed, and the building is ready for occupation and use.46
72 That construction process should have occurred following confirmation, in the course of the process for obtaining a building permit,47 that the building's plans and specifications comply with applicable standards,48 and that the proposed builder is a person permitted to carry out building work.49 A building permit must identify the building in question and set out various matters, including details of the builder permitted to construct the building, any conditions imposed by the permit authority in respect of the building permit, and the inspections and tests required to be conducted during, and at the completion of, the building work.50
73 The Building Regulations 2012 (WA) (the Regulations) made pursuant to the Building Act set out a number of different inspections which are required to be conducted at various stages during the building process, or upon its completion, including for the testing of fire suppression, detection and warning systems; sound and emergency intercom systems; and inspections for pool barriers.51
74 The builder named in the permit is required to ensure that the building is completed in accordance with the plans and specifications set out in the certificate of design compliance, and with the building permit, including any conditions applicable to the permit.52 Once the building work permitted by the permit has been completed, the builder must give notice of completion to the permit authority (in this case, the City) within seven days. That notice of completion is to be accompanied by a copy of a certificate for each inspection or test that applied to the permit.53
75 An application for an occupancy permit may be made in relation to a completed building by any person.54 The application must be accompanied by a certificate of construction compliance, together with a copy of any technical certificates relied upon as the basis for the certificate of construction compliance or which are prescribed by the Regulations.55 The certificate of construction compliance is a certificate signed by a building surveyor which states that the building has been completed in accordance with the plans and specifications that are specified in the certificate of design compliance for the building permit, that the building complies with the building permit and any conditions of that permit, and that the building is otherwise suitable to be used in the way proposed in the application for the occupancy certificate.56
76 The requirements which must be satisfied before a permit authority may grant an occupancy permit include that the certificate of construction compliance and the technical certificates have been signed by qualified persons.57 The Building Act thus contemplates that the permit authority is entitled to rely on the expertise of the qualified persons who signed the certificate of construction compliance, and the technical certificates. In addition, an occupancy permit may not be issued if any building orders made during the construction of the building have not been complied with, or if legal proceedings in relation to a breach of a law relating to the building are ongoing.58
77 When an occupancy permit is granted, it must set out a variety of matters, including the use to which the building may be put, any restrictions on its use, and any requirements in relation to inspection and testing for occupational health and safety matters that apply to the building pursuant to the Regulations.59
78 Finally, it is incumbent upon the owner of a building for which an occupancy permit is in effect to ensure that certain information contained in the occupancy permit is displayed near the entrance to the building, or is otherwise drawn to the attention of persons who occupy and use the building.60 That information includes the use of the building which is authorised by the occupancy permit.61
79 From this brief overview, it can be seen that the approach adopted in the Building Act is to require that compliance with applicable standards relating to the construction and use of buildings is certified by qualified experts, and that confirmation of that certification is provided at various stages during the construction of a building. The culmination of that process lies at the occupancy permit stage, because that is the point at which the permit authority (in this case, the City) is able to confirm that a building has been constructed in accordance with the applicable standards for building, design, occupational health and safety and so on.
80 In my view, the provisions of the Building Act to which I have referred demonstrate that an occupancy permit serves three purposes.
81 First, the requirement for an occupancy permit serves a critically important public health and safety function in ensuring that buildings are not used and occupied until the permit authority has confirmed that they have been properly constructed and will be fit for use.
82 Secondly, the occupancy permit is a means by which a permit authority can ensure that a building is used only for a purpose for which it is suitable, and that ongoing checks and inspections can be required which will ensure that it continues to be fit for that purpose into the future.
83 These two purposes behind the requirement for an occupancy permit, which I have discerned from the provisions of the Building Act, are confirmed by the Explanatory Memorandum for the Building Bill 2010 (WA) (a copy of which was provided to the Court by counsel for Wildan62) which states that:
[A]n occupancy permit is evidence that a building has been lawfully constructed and is safe to occupy for the use stated in the permit. Occupancy permits set out any maintenance and inspection requirements for equipment and services that are essential for the safety of the building and its occupants. Essential maintenance will apply predominantly to essential safety systems such as fire sprinklers, smoke exhaust fans and the like.63
84 Thirdly, the occupancy permit has a public notification function, in that information from the permit, especially in relation to the permitted use for the building in question, is required to be displayed or brought to the attention of the persons who use the building. That requirement no doubt assists in maintaining public confidence in the safety of buildings, while facilitating the identification of any departure from the authorised use of a building.
4. The basis for discerning implied error in the sentence imposed
85 An appeal court cannot interfere with the exercise of the sentencing discretion simply because the appeal court might have imposed a different sentence had it sentenced the offender at the initial hearing. Interference will only be justified if the appellate court is satisfied of error.64
86 An appellant thus needs to demonstrate that the judge or magistrate erred in exercising that discretion by making an express error (such as a mistake as to the law or the facts) or by making an error which is implied or inferred. In the latter case, the implied error arises from the fact that the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.65
87 No express error is alleged in this case. Instead, the sole ground of appeal is that the fine imposed by the learned Magistrate was manifestly excessive.
88 No particulars were provided as to why the sentence imposed was said to be manifestly excessive. The ground of appeal thus failed to comply with r 65(2)(d) of the Criminal Procedure Regulations 2005 (WA) which makes clear that a ground of appeal must not merely allege that a sentence is excessive or inadequate. The purpose of that rule is to ensure that sufficient particulars are provided so that the respondent, and the Court itself, knows why it is that an appellant contends that a sentence was manifestly excessive or inadequate (as the case may be).66 Failure to do so is inefficient, and if particulars are not provided other than in the course of submissions, unfairness to the respondent may result in some cases. In the present case, the basis on which the sentence imposed was said to manifestly excessive was not made clear prior to the filing of submissions shortly before the appeal itself. Counsel for the City noted the deficiency in the ground of appeal, but did not suggest that it had resulted in any unfairness to the City in its response to the appeal, and counsel for the City was able to respond to the issues raised by Wildan in the course of his submissions.
5. Why the sentence imposed for the Building Act offence was manifestly excessive in all of the circumstances
89 In order to ascertain whether a sentence is manifestly excessive, it is necessary to review the sentence having regard to the maximum penalty available, to the standards of sentencing customarily observed in relation to offences of this character, to the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and to the personal circumstances and antecedents of the offender. All aggravating and mitigating circumstances must also be taken into account.67
90 I turn to consider those matters.
(a) The maximum penalty for the Building Act offence
91 The penalty for an offence under s 41(2), for a first offence, is a fine of $50,000. In the case of a corporation which commits that offence, the maximum penalty is a fine of $250,000.68
92 Given the public health and safety objectives which are served by the requirement for an occupancy permit, and which I have discussed above, it is not surprising that a significant maximum penalty applies in respect of a breach of s 41(2) of the Building Act, especially where the breach is committed by a corporation.
(b) The standards of sentencing customarily observed in relation to offences of this character
93 It is not possible to discern any standard of sentencing that is customarily observed for offences of the present kind, for two reasons.
94 First, counsel advised that they were unaware of any appellate decisions in respect of offences under s 41 of the Building Act. Given that the provision was enacted relatively recently that is hardly surprising.
95 Secondly, I am not persuaded that any real guidance can be obtained from the sentences imposed under other legislation relating to requirements for approval for the construction of buildings, or to compliance with applicable standards in the construction of buildings.
96 Counsel for Wildan submitted that some guidance could be obtained from sentences imposed for breaches of s 374 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (the LGMP Act) which has now been repealed. However, that provision created a number of offences, including the offence of commencing the construction of a building, or the alteration or extension of a building, without obtaining the local government's approval for the plans and specifications for that work, which approval was given in the form of a building licence,69 the offence of occupying or using a building before the plans and specifications for that building had been approved by the local government,70 and the offence of undertaking building work other than in conformity with the plans and specifications approved by the local government.71 None of those offences reflect the gravamen of the Building Act offence in this case.
97 In addition, the penalty for a breach of s 374 had changed significantly over time. Immediately prior to the commencement of the Building Act, the penalty for a breach of s 374(1) by a corporation was $250,000, with a daily penalty of $25,000. Before July 2008, the penalty for that offence, when committed by a corporation, was $25,000 with a daily penalty of $500. In considering sentences imposed for offences under s 374 of the LGMP Act, the influence of a significant daily penalty in identification of the appropriate fine, having regard to the totality principle, cannot be overlooked.
98 Counsel relied in particular on the sentence imposed in Able Lott Holdings Pty Ltd v City of Fremantle,72and in Hollywood v City of Joondalup.73Hollywoodis of no assistance in the present case. It involved an individual rather than corporate offender, an appeal against conviction rather than sentence, and factually was very different from the present case. Similarly, Able Lott Holdings is also of no assistance. The charge under s 374 which was brought in that case was brought because the company undertook building work without obtaining a building licence, and thus without approval for the plans and specifications for the building. In addition, at the time of the offence, the maximum penalty for a corporation was a fine of $25,000 with a daily penalty of $500.
99 I note for completeness that Able Lott Holdings was prosecuted a second time for conducting building work without approval, under s 374 of the LGMP Act.74 The company was fined $5,000 in respect of that offence. However, in that case (as in the case of the earlier Able Lott prosecution) the charge under s 374 of the LGMP Act was but one of a number of charges levied against the company under that Act and under the Planning and Development Act 2005 (WA).
100 Counsel for Wildan also sought to draw some assistance from cases involving sentences imposed for offences under s 218 of the Planning and Development Act 2005 (WA). That provision makes it an offence to contravene the provisions of a planning scheme, or to carry out a development of land otherwise than in accordance with a planning scheme. Offences under that provision are, by their nature, very different from offences under s 41 of the Building Act. Furthermore, the penalty for a breach of that section is different from the penalty for an offence under s 41 of the Building Act. Until 2011 the maximum penalty for the offence under s 218 when committed by a corporation was $250,000 with a daily penalty of $25,000. However, since 2011, the maximum penalty for a breach of s 218 by a corporation has been $1,000,000 with a maximum daily penalty of $125,000.
101 Counsel for Wildan relied, in particular, on Paolucci v Town of Cambridge,75and on Steelmakers Pty Ltd v City of Swan.76Paolucciis of no assistance in ascertaining the range of sentences customarily imposed for offences of the present kind. It involved offences of a different kind, committed by individuals, and the maximum penalty applicable in those circumstances was necessarily of a very different order of magnitude.
102 Steelmakersalso does not assist. The increased maximum penalty applied in that case, and again the factual context was very different.
(c) The place which the criminal conduct occupies on the scale of seriousness of offences of this type; aggravating and mitigating circumstances
103 Counsel for Wildan referred to the Appendix to the Explanatory Memorandum for the Building Bill 2011 (WA), which explained that offences under the Bill were divided into four categories. The most serious of those were described as 'severe' and attracted a maximum fine of $50,000 for a first offence and greater penalties for subsequent offences. The offence under s 41(2) of the Building Act falls into this category. He submitted that in the case of a building lawfully constructed in accordance with a building permit, and where physical occupation does not represent a risk to public safety, occupation of the building without an occupancy certificate is conduct which 'may not actually be severe in its nature'.77
104 Counsel for Wildan submitted that the learned Magistrate had characterised the offending conduct at the more serious end of the spectrum because he identified a fine equivalent to 60% of the maximum penalty as the starting point for determining the appropriate sentence. Counsel for Wildan noted that after giving a discount of 15% for the plea of guilty, and a further discount for the appellant's cooperation with the City, the fine imposed equated to 48% of the maximum penalty for the Building Act offence.
105 Counsel for Wildan submitted that in this case the breach in question was merely 'technical' in nature, and at the lower end of the spectrum of conduct that contravenes s 41. I am unable to accept that submission, for the following six reasons.
106 First, throughout the period covered by the prosecution notice (16 July 2014 - 10 October 2014), Wildan was aware that it was required to have an occupancy permit before it occupied the building, yet it did not vacate the premises while it applied for one. Having regard to the findings made by the learned Magistrate, this was not a case where the offence was, from the outset, committed with a deliberate disregard for the requirements of the Building Act. His Honour appeared to accept that when Wildan first entered into occupation of the building, it did so in the mistaken belief that all relevant approvals necessary for its occupation had been issued. However, the learned Magistrate also appears to have been of the view that by 7 July 2014 (prior to the date of the offending conduct particularised in the prosecution notice) that mistaken belief could not have been maintained. By that date (when Ms Novak, Wildan's 'CFO', signed the application for the occupancy permit) Wildan was aware that it needed to obtain a certificate of occupancy.
107 For the same reason, little weight can be given to the submission by counsel for Wildan that Wildan had not occupied the building in defiance of a warning from the City that to do so would constitute a breach of the Building Act. Although no warning was given, none was required to be given, and from 7 July 2014, Wildan knew of the requirement for the permit. Similarly, little weight can be given to the submission by counsel for Wildan that Wildan had relied on its builder to obtain the occupancy permit on its behalf. While that may have been so initially, the obligation under s 41 not to enter into use or occupation of the building without that permit lies on the owner and occupier, and Wildan was aware that it needed the permit from 7 July 2014.
108 Secondly, the fact that Wildan remained in occupation of the building after it became aware that it required an occupancy permit was clearly an aggravating factor. As the learned Magistrate observed, Wildan's continued occupation of the building without a permit went 'beyond the order of contemplated conduct'.78 In other words, the learned Magistrate appears to have taken the view (correctly, in my opinion) that once Wildan became aware that it required an occupancy permit, it should have vacated the premises until it obtained that permit. Furthermore, Wildan remained in occupation without a permit for a lengthy period. The prosecution notice pertained to a period of 86 days, from 16 July 2014 to 10 October 2014. That lengthy period of occupation without the necessary permit, in circumstances where Wildan knew it was required to have the permit, was clearly an aggravating factor which increased the relative seriousness of the offending conduct.
109 Thirdly, the fact that Wildan was of the view that the requirements for the grant of an occupancy permit could be met, does not render its conduct less serious. Owners and occupiers are not entitled to take occupation of a building without first obtaining an occupancy permit, and then pursue the grant of a permit. It is no answer to say that the owner or occupier considers that the requirements for the grant of a permit have been met, or assumes that a dispute about the grant of a permit will be resolved in its favour. The objective behind the requirement to obtain the occupancy permit is to ensure that the relevant permit authority has the opportunity to make that assessment before occupation commences. The public safety objective behind the requirement for the issue of an occupancy permit would be significantly undermined were it the case that occupation could commence and continue before the issue of the permit.
110 Fourthly, as I observed at [62], the learned Magistrate found that there was a commercial aspect to Wildan's continued occupation of the building, without a permit, and that increased the relative seriousness of its offending conduct. The finding made by the learned Magistrate was as follows:79
[In] those circumstances it would seem to me that there has been, with the flux of time, some commercial expediency obtained by the defendant … in the continuing absence of those failures to meet the obligations, and particularly the permit to occupy and use.
… Whether or not the occupation occurred as a matter of commercial expediency, the consequences are … that it has had that effect.
111 In other words, while he did not make a finding that Wildan's entry into occupation of the premises was motivated by commercial considerations, he concluded that its continued occupation of the premises, while it sought the permit, was commercially expedient. I understand his Honour's observation to amount to a finding that Wildan's continued occupation of the Lots, after it applied for the occupancy permit on 7 July 2014, was motivated by the fact that it was commercially expedient for it to remain, rather than to vacate the premises.
112 Counsel for Wildan submitted that there was no evidence before the learned Magistrate to support that conclusion.80 The City did not seek to adduce any evidence to prove that Wildan would obtain a commercial benefit from occupying the building before the occupancy permit was granted. Instead, counsel for the City invited the learned Magistrate to draw an inference from the facts which were not in dispute. He submitted that there was:
[C]learly a commercial aspect to this breach. It's a large building … and, presumably, they wanted to kick on and get operating on the site, which is what they've done.81
113 In my view, the conclusion drawn by the learned Magistrate was open as a matter of inference from facts which were not disputed. The facts were that the development on the Lots was a significant one (as photos produced to the learned Magistrate, and on the appeal, amply demonstrated). Counsel for Wildan described it as a ‘quality development'.82 The learned Magistrate asked counsel for Wildan for his response to the submission that there was a commercial aspect to Wildan's continued occupation of the Lots without an occupancy permit. Counsel for Wildan submitted that 'there's more to it than that'.83 However, as the learned Magistrate noted, other than for the submission that Wildan had been mistaken in thinking that it was entitled to enter into occupation when it did, no explanation was offered for why Wildan had entered into occupation without making enquiries as to whether it was entitled to do so. In addition, no explanation was offered as to why Wildan did not vacate the building once it became aware that it required an occupancy permit to occupy it. Instead, Wildan appears to have proceeded on the basis that it was endeavouring to resolve with the City those matters in dispute which prevented its grant of the permit. In my view, those circumstances permitted the inference that it must have been commercially expedient to Wildan to continue its use of the building, rather than to vacate the building, and leave it vacant, while the dispute in relation to the occupancy permit was resolved. That was an aggravating factor properly taken into account by the learned Magistrate as increasing the seriousness of the offending conduct.
114 The effect of that aggravating factor, however, should not be overstated. The learned Magistrate relied upon it as a basis, or one of the bases, for his conclusion that this offending conduct was not merely a technical breach at the lowest end of the scale. At the same time, he did not regard this factor as having the result that the offence was at the top end of the scale of offending.84 There was no error in that approach.
115 Fifthly, contrary to the submission made by counsel for Wildan, the learned Magistrate's assessment of the seriousness of the Building Act offence was quite consistent with his Honour's assessment of the seriousness of the Health Act offence, having regard to the penalty imposed for each offence. Counsel for Wildan submitted that the fine imposed by the learned Magistrate indicated that his Honour regarded the Health Act offence as a less serious, and merely technical, breach. That submission failed to take into account the total sentence imposed for the Health Act offence, and in particular the impact of the total daily penalties imposed. It is apparent from the total penalty that his Honour regarded that offending conduct as serious in nature.
116 Sixthly, at the hearing of the appeal, counsel for the City informed the Court that the occupancy permit was eventually issued in June 2015.85 The fact that an approval is subsequently, or retrospectively, given in relation to a development may, but not necessarily will, be given some weight as a mitigating factor.86 The mitigating impact of a subsequent approval will depend on the circumstances. Given the circumstances to which I have referred above, the fact that Wildan eventually obtained an occupancy permit does not warrant any significant weight as a mitigating factor. This was a case where continued occupation of the building, notwithstanding that it did not have a permit, constituted a continuing failure to comply with the law.87
117 While I do not accept that the Building Act offence was a merely technical breach at the least serious end of the spectrum of offences of this kind, I nevertheless find myself in the position where I am unable to agree with the learned Magistrate's conclusion that Wildan's conduct was sufficiently serious as to warrant the imposition of a penalty, the starting point for which was as high as three fifths of the maximum penalty for the offence.
118 Counsel for the City submitted88 that the dispute as to whether Wildan had complied with the Health Department's conditions of approval for the installation of the ATU, and the fact that it did not have approval to use the ATU for sewage disposal, carried significant weight as aggravating factors. However, I am unable to agree, given that the occupancy permit was ultimately granted, and there was no suggestion that Wildan was first required to undertake any rectification work in relation to the installation of the ATU.
119 In summary, having regard to the sentencing facts which were not in dispute, Wildan's conduct was certainly not at the lowest end of the scale of offences of this kind. The continued occupation of the building, after Wildan applied for the occupancy permit, and in the knowledge that the City disputed its compliance with the planning approval, and in circumstances where it can be inferred that it was commercially expedient for Wildan to remain in occupation while it sought to obtain a permit, meant that this was undoubtedly a significant instance of offending conduct under s 41, albeit one which was not at the upper end of the scale.
(d) Wildan's individual circumstances
120 Counsel for Wildan also submitted that the learned Magistrate erred in that he inadequately reduced the penalty for Wildan's individual circumstances which were provided in mitigation. Other than for the mitigating factors I have already mentioned, the only additional matter particular to Wildan which was relevant to sentencing was the fact that it was a first offender. It was not contended that the learned Magistrate failed to take that circumstance into account (and he clearly did take that matter into account89) but rather that the sentence was manifestly excessive having regard to all of the circumstances, including that one. There was no suggestion that Wildan did not have the means to pay a substantial fine.
(e) Other matters
121 Two additional matters relied upon by counsel for Wildan should be mentioned.
122 Counsel for Wildan submitted that the learned Magistrate erred in failing to give Wildan the 'full 25% discount for a plea of guilty',90 which appeared to be a reference to s 9AA(4) of the Sentencing Act. Counsel for Wildan did not contend that that constituted an express error, but contended that the inadequate discount rendered the overall sentence manifestly excessive.
123 Whether or not s 9AA of the Sentencing Actapplies in this case,91 I am not persuaded that the extent of the discount given for Wildan's plea of guilty was inadequate. The learned Magistrate expressly gave Wildan a 15% discount for its plea of guilty. Counsel for Wildan submitted that Wildan had been endeavouring to resolve its dispute with the City in the hope that a prosecution would not be pursued. But there was no suggestion that an application had been made to adjourn the trial, and as I have already observed, notice of the plea of guilty was only given the day before the trial was due to commence. While the plea no doubt resulted in some saving in the time and resources which would otherwise have been expended in the conduct of the trial, those potential benefits would inevitably have been reduced by the lateness of the plea. Counsel for the City advised the learned Magistrate that its case had been fully prepared by the time it was notified of the plea.
124 In all of the circumstances the discount given for the plea of guilty was not insignificant, and in my view there is nothing to suggest that the learned Magistrate's discretion miscarried.
125 In supplementary submissions filed after the hearing, counsel for Wildan raised a further issue which was not raised before the learned Magistrate, nor during the hearing of the appeal. Counsel for Wildan submitted that the Building Act does not require an approval under s 107 of the Health Actto be in place prior to the issue of an occupancy permit. He therefore submitted that 'it may have been open for an occupancy permit to have issued to [Wildan] under the Building Act, without [Wildan] having first obtained an approval under section 107 of the Health Act'. Consequently, he submitted that:
Had the [City] not asserted that an approval under section 107 of the Health Act was required as a prerequisite to the grant of the occupancy permit under the Building Act, it may be that the occupancy permit would have issued to [Wildan] and [Wildan] would not have ultimately contravened section 41(2).
126 Although leave had been granted to counsel to make further submissions, that grant of leave was not open-ended. It was expressly limited to a grant of leave to make further submissions in respect of the legislative purpose behind s 41 of the Building Act. Counsel should refrain from filing supplementary submissions after a hearing, without leave to do so, and should confine any supplementary submissions filed pursuant to a grant of leave within the confines of that grant of leave.92 In the present case, however, perhaps counsel for Wildan overlooked the fact that the grant of leave to make further submissions was limited.93 In addition, this further issue was addressed by counsel for the City in the course of his submissions in reply. In those circumstances, and for the sake of completeness, I will deal with the further submission made by counsel for Wildan.
127 It suffices to say that the Building Act offence was committed once Wildan entered into occupation of the building without an occupancy certificate having been issued. Wildan entered a plea of guilty to the Building Act offence charge. Wildan has not sought to set aside its conviction for that offence. It is not helpful to speculate, as counsel for Wildan now seeks to do, about what might have been the outcome had an entirely different course of action been pursued by Wildan in this case. Such considerations are irrelevant to its appeal against the sentence imposed for the Building Act offence.
6. The sentence which should be imposed
128 In my view, as an implied error has been made out, in that it has been shown that the sentence imposed was manifestly excessive, the sentence should be set aside.94 The court has power to resentence.95
129 In doing so, I have taken into account all of the matters referred to before the learned Magistrate, as discussed above.
130 In addition, in my view, given the importance of the public safety objectives behind the requirement in the Building Act for an occupancy permit to be issued before a newly constructed building may be occupied, the sentence imposed for the offence should encompass an element of general deterrence. In particular, the sentence imposed in this case should act as a deterrent to any party who might be tempted to enter into occupation without an occupancy permit, or to remain in occupation if the absence of a permit comes to light, on the basis that a permit can be obtained during the course of the occupation.
131 In Swan Bay Holdings Pty Ltd v City of Cockburn96Hasluck J made the following observations in respect of planning controls, which in my view are equally apt here:
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.
132 In my view, the appropriate sentencing starting point in the circumstances of this case is $120,000.
133 A discount for the plea of guilty in the same quantum as that identified by the learned Magistrate (of 15%) should be given. In addition, taking into account, by way of mitigation, the fact that this was a first offence, and the learned Magistrate's finding that Wildan had co-operated with the City, the penalty which should be imposed in respect of the Building Act offence is a fine of $90,000.
7. The orders which should be made
134 The orders which should be made appear to me to be as follows:
1. Leave to appeal is granted in respect of the ground of appeal;
2. The appeal is allowed; and3. The sentence imposed by the learned Magistrate in respect of the offence against s 41 of the Building Act is set aside and in lieu thereof, a fine of $90,000 is imposed.
135 I will hear from the parties as to the form of the orders, and on the question of costs.
1 Pursuant to the Criminal Appeals Act 2004 (WA) s 7(1).
2Criminal Appeals Act 2004 (WA) s 9(1).
3Criminal Appeals Act 2004 (WA) s 9(2); see also Samuels v The State of Western Australia[2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
4 ts 2 (19 May 2015).
5Building Act 2011 (WA) s 20 and s 27.
6 ts 42 (20 November 2015).
7 ts 27 (19 May 2015).
8 ts 38 (19 May 2015).
9 ts 38 (19 May 2015).
10 ts 39 (19 May 2015).
11 ts 40 - 41 (19 May 2015).
12 ts 13 (19 May 2015).
13 ts 14 (19 May 2015).
14 ts 24 (19 May 2015).
15 ts 33 (19 May 2015).
16 ts 44 (19 May 2015).
17 ts 10 (19 May 2015).
18 ts 36 (19 May 2015).
19 ts 18 (19 May 2015).
20 ts 25 (19 May 2015).
21 ts 10 (19 May 2015).
22 ts 30 (19 May 2015).
23 ts 48 (19 May 2015).
24 ts 47 - 48 (19 May 2015).
25 ts 48 (19 May 2015).
26 ts 48 (19 May 2015).
27 ts 48 (19 May 2015).
28 ts 49 (19 May 2015).
29 ts 49 (19 May 2015).
30 ts 49 (19 May 2015).
31 ts 49 (19 May 2015).
32 ts 49 (19 May 2015).
33 ts 49 - 50 (19 May 2015).
34 ts 50 (19 May 2015).
35 ts 50 (19 May 2015).
36 ts 50 (19 May 2015).
37 ts 51 (19 May 2015).
38 ts 51 (19 May 2015).
39 ts 51 (19 May 2015).
40 ts 51 (19 May 2015).
41 ts 51 (19 May 2015).
42 ts 51 (19 May 2015).
43 ts 51 (19 May 2015).
44 See Health Act 1911 (WA) s 107(4) and s 360(1)(b), when read in conjunction with the Sentencing Act 1995 (WA) s 40(5).
45Building Act 2011 (WA) s 41.
46Building Act 2011 (WA) s 46 and s 54.
47Building Act 2011 (WA) s 16 and s 20.
48 See, for example, the requirement for provision of a certificate of design compliance in s 16(e) and s 19, together with the requirement in s 16(g) and s 16(i) for the provision of such 'technical certificates' as have informed the design process.
49 See Building Act 2011 (WA) s 16(c) and s 20(1).
50Building Act 2011 (WA) s 25(3).
51Building Regulations 2012 (WA) r 27 and r 28, and sch 3 to the Regulations.
52Building Act 2011 (WA) s 29(1).
53Building Act 2011 (WA) s 33.
54Building Act 2011 (WA) s 46, s 47 and s 51.
55Building Act 2011 (WA) s 54(2) and s (4)(a) and (b).
56Building Act 2011 (WA) s 56(2).
57Building Act 2011 (WA) s 58(1).
58Building Act 2011 (WA) s 58(1).
59Building Act 2011 (WA) s 61(2).
60Building Act 2011 (WA) s 42.
61Building Regulations 2012 (WA) r 35.
62 Affidavit of Alexander Mark McCarney McGlue sworn 27 November 2015, annexure AMG-1.
63 Affidavit of Alexander Mark McCarney McGlue sworn 27 November 2015, annexure AMG-1, page 18.
64Lowndes v The Queen[1999] HCA 29; (1999) 195 CLR 665, 671 - 672 [15].
65House v The King[1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ); Wilson v The State of Western Australia[2010] WASCA 82 [2] (McLure P & Owen JA).
66Evans v Richards[2015] WASC 53 [11] (McKechnie J).
67Chan v The Queen(1989) 38 A Crim R 337, 342 (Malcolm CJ); Mack v The State of Western Australia[2014] WASCA 207 [193] - [194] (Buss JA, Martin CJ & Mazza JA agreeing).
68Sentencing Act 1995 (WA) s 40(5).
69Local Government (Miscellaneous Provisions) Act 1960 (WA) s 374(1).
70Local Government (Miscellaneous Provisions) Act 1960 (WA) s 374(3).
71Local Government (Miscellaneous Provisions) Act 1960 (WA) s 374(5).
72Able Lott Holdings Pty Ltd v City of Fremantle[2012] WASCA 39; (2012) 187 LGERA 122.
73Hollywood v City of Joondalup[2010] WASC 306; (2010) 178 LGERA 252.
74Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431.
75Paolucci v Town of Cambridge[2013] WASC 50; (2013) 193 LGERA 388.
76Steelmakers Pty Ltd v City of Swan[2014] WASC 449.
77 Appellant's supplementary submissions [19].
78 ts 51 (19 May 2015).
79 ts 51 (19 May 2015).
80 ts 27 (20 November 2015).
81 ts 10 (19 May 2015).
82 ts 12 (19 May 2015).
83 ts 26 (19 May 2015).
84 ts 51 (19 May 2015).
85 ts 32 (20 November 2015). Developments between the conviction and sentencing, and the hearing of the appeal, may be taken into account on an appeal against sentence: Criminal Appeals Act 2004 (WA) s 14(5).
86Able Lott Holdings Pty Ltd v City of Fremantle[2012] WASCA 39; (2012) 187 LGERA 122 [45] (Pullin JA, Buss & Mazza JJA agreeing).
87 cf Able Lott Holdings Pty Ltd v City of Fremantle[2012] WASCA 39; (2012) 187 LGERA 122 [45] (Pullin JA, Buss & Mazza JJA agreeing).
88 Respondent's supplementary submissions [7].
89 ts 51 (19 May 2015).
90 Appellant's submissions [48].
91 cf Evans v Richards [2015] WASC 53 [38], [40] (McKechnie J).
92Guest v Commissioner of Taxation (No 2) [2007] FCA 412 [14] (Heerey J).
93 cf ts 53 (20 November 2011).
94Criminal Appeals Act 2004 (WA) s 14(1)(c).
95Criminal Appeals Act 2004 (WA) s 14(1)(d).
96Swan Bay Holdings Pty Ltd v City of Cockburn[2010] WASC 81 [74] (Hasluck J).
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