Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : ABLE LOTT HOLDINGS PTY LTD -v- CITY OF FREMANTLE [2011] WASC 87

File No : SJA 1029 of 2010, SJA 1030 of 2010, SJA 1031 of 2010

Criminal law - Sentence - Breach of development and building laws - Whether sentences manifestly excessive

Criminal Appeals Act 2004 (WA), s 9, s 14, s 16, s 18

Able Lott Holdings Pty Ltd and City of Fremantle [2010] WASAT 117

Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87

Chan (1989) 38 A Crim R 337

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37

Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243

Peat Resources of Australia Pty Ltd v Rodney William Brown Chief Executive Officer City of Cockburn [2002] WASCA 342

Reid v The State of Western Australia [2012] WASCA 23

Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81

1 PULLIN JA: This is an appeal against the judgment of Murray J dismissing an appeal against the sentences imposed by his Honour Magistrate Michelides in the Magistrates Court of Western Australia.

2 The appeal concerns the prosecution of the appellant by the respondent for three offences of which the appellant eventually pleaded guilty. The charges were:

(a) Between 8 March 2007 and 16 August 2007, at 5 Beach Street, Fremantle, the appellant carried out development within the scheme area of the City of Fremantle, Local Planning Scheme No 4 (Scheme), without all approvals required by the Scheme having been granted, in contravention of cl 11.4 of the Scheme, contrary to s 218(a) of the Planning and Development Act 2005 (WA).

(b) Between 13 February 2007 and 16 August 2007, at Fremantle, the appellant proceeded with a building on the same piece of land without first submitting to the council of the respondent for approval, and without the council having approved by the issue of a building licence, a plan and specifications showing the building proposed to be built, contrary to s 374(1)(a) of the Local Government (Miscellaneous Provisions) Act 1960 (WA).

(c) Between 13 February 2007 and 16 August 2007, the dates during which it was alleged that the appellant proceeded with the building without approval, in relation to the same land in Fremantle, the appellant committed the offence of allowing work to be done in contravention of a stop work notice issued under s 401A of the Local Government (Miscellaneous Provisions) Act, contrary to s 401A(5) of that Act.

3 The penalty provision in relation to the first offence was provided for in s 223 of the Planning and Development Act. At the relevant time in 2007, that section provided a general penalty of a fine of $50,000 and in the case of a continuing offence, which this was accepted to be, a further fine of $5,000 for each day during which the offence continued. Because the appellant was a body corporate, s 40(5) of the Sentencing Act 1995 (WA) made the appellant liable to a fine five times the maximum that could be imposed on a natural person convicted of the offence. Thus, the maximum penalty was $250,000 and a daily penalty of $25,000.

4 In relation to the second charge, at the relevant time in 2007, s 374(1) of the relevant Act prescribed a penalty of a fine of between $200 and $5,000 and a daily penalty of between $20 and $100 for each day during which the offence continued. This was a continuing offence. Because the appellant was a body corporate and the penalty for a body corporate was not specifically prescribed, s 40(5) of the Sentencing Act operated to increase the maximum penalties to five times those prescribed, ie a maximum of $25,000 and a maximum daily penalty of $500.

5 In relation to the third charge, the maximum penalty under s 401A of the Local Government (Miscellaneous Provisions) Act was $5,000 and having regard to the provisions of s 40(5) of the Sentencing Act, in the case of the appellant the maximum penalty was a fine of $25,000.

6 In relation to the first charge, the appellant was fined $100,000 and a daily penalty of $500 was applied over the period of 162 days during which the contravention of the relevant clause of the Scheme remained unremedied. The additional penalty was therefore $81,000 and the total penalty imposed on the appellant for this offence was $181,000.

7 In relation to the second offence, the appellant was fined $12,000 with a daily penalty of $150 imposed for 185 days. Therefore, the total daily penalty was $27,750 and the total fine for the offence was $39,750.

8 In relation to the third charge, the appellant was fined $10,000.

In those circumstances, it is appropriate to observe that the three maximum penalties totalled a sum of $300,000, but the maximum penalty for the most serious of the offences, that of carrying out development of the land without the approvals required by the Local Planning Scheme, was the sum of $250,000. Assuming that this was a case where it could have been done, the magistrate did not impose a single fine for all of the offences pursuant to s 54 of the Sentencing Act. Had his Honour done so, by s 54(2), that fine could not be more than the sum of the fines provided by the statutory penalties for each of the offences. In this case his Honour, as has been seen, imposed individual fines totalling the sum of $122,000.

In addition, there were the daily penalties by way of additional fines. It would seem to me that they had to be imposed separately and could not be aggregated. For the most serious of the offences, that mentioned first above, for the particular period of 162 days, the maximum daily penalty was a fine of $25,000 for each day during which the offence continued, a total of $4,050,000. As I have said, the daily penalty imposed in respect of that offence was $81,000 in aggregate.

Then for the offence of doing building work without the approval signified by the issue of a building licence, the maximum daily penalty was $500, which would produce a maximum additional fine in respect of the 185 days involved in relation to that offence, of $92,500. In relation to that offence, as has been seen, the daily penalty of $150 which was imposed produced a total penalty of this type of $27,750. The total of the daily penalties was $108,750, giving a grand total of all the fines imposed of $230,750 [4] - [6].

10 The proceedings before the Magistrates Court commenced with prosecution notices issued on 9 October 2007. Pleas of not guilty were advised in respect of the offences and two other charges which did not proceed. The matter came on for hearing in the Magistrates Court on 24 March 2009. It was listed for one day and only one prosecution witness gave evidence before the matter was adjourned. It came on again on 17 November 2009. Charges against the principal of the appellant, Mr Fazio, were discontinued and pleas of guilty were entered to the three charges referred to above. The matter was then adjourned, and on 5 March 2010, a statement of the departures from the approved plans for the building was agreed between the parties and provided to the court.

11 The magistrate then took time to consider and the sentences were imposed on 9 March 2010.

12 The magistrate gave reasons for imposing the sentences. He referred to the schedule of departures which his Honour accepted as establishing the relevant facts. His Honour took into account the fact that the appellant had at last pleaded guilty, although the extent of that mitigating fact was reduced by the fact that the plea was after a day of hearing. His Honour also took into account the fact that the appellant had no record. The magistrate then continued by saying:

A great deal of defence counsel's submissions in mitigation referred to the ease with which the disobedience of the accused could be put right. That is all very well, but what became clear was that there was very little plausible explanation given for the repeated and seemingly determined efforts of the company to go its own way without approval and to ignore the stop work notices. Some of the deviations were ostensibly for safety and heritage preservation - for example those relating to the wall which was leaning - but still these actions were done without proper approval and could have been done, presumably with approval, albeit taking some time.

It is hard to avoid the conclusion that the company determined upon a course of action for its own commercial benefit and convenience and tried to force their way through the red tape which was standing there, doubtless in the hope that the council would submit under the pressure of a fait accompli. Indeed, to some extent this succeeded. I am told by counsel for the prosecution that the council's powers to require complete demolition are unlikely to succeed due to the heritage status of the site; so one remedy of which the accused must have known is no longer viable.

The deviations from the approved work are many and spread over a very significant period, and although some are less serious than others, none is trivial. I proceed upon the basis that the collective effect places these offences, these three offences, well into the top half of the range of seriousness for this type of offending. They were brazen. They extended over a significant period of time. They have caused the council a great deal of time and trouble to try and exact compliance, to no avail.

One makes the general observation that development companies are often short lived. They come and go with each development, or they can come and go with each development, and often they have the same people behind them. Of course their stock in trade is profit. Clearly a deterrent statement must be made, and the only available deterrent is a fine substantial enough to make the option of ignoring council requirements, both as to the doing and the ceasing of work, unattractive.

13 The material facts are set out in Murray J's reasons between [18] - [39] Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87.

14 I incorporate those paragraphs by reference into these reasons. In brief terms, there was a building on land consisting of an old warehouse. The respondent wanted to preserve the façade, along with some roofing timbers. Planning approval was obtained on 24 June 2003 for a period of three years. On 19 July 2004, a building licence was issued which expired on 19 July 2005.

15 An extension of the planning approval was sought for a period of 12 months, backdated to commence in June 2006. An application was made for an extension of the building licence, but it was refused on 13 February 2007 and a stop work notice was served. Earlier, in December 2006, there was some damage to the old building due to rain.

16 Despite the lack of the building licence, the lack of planning approval and despite the stop work notice, work continued on the site from 13 February 2007 to 16 August 2007. The start date of 8 March 2007 for the offence of doing development work without planning approval was the date when the Local Planning Scheme No 4 came into operation.

17 Not only were building works carried out without planning approval, without a building licence and contrary to the stop work notice, but all of the buildings had changes made from those which had originally been approved. There were changes made to the constructed floor levels and overall height, internal communication between different levels was dispensed with, external staircases were created linking different levels via balconies and additional areas to those provided for accommodation were designated for bar, cafe and laundromat facilities. A much greater intensity of land use was involved in the as constructed project.

18 There are three appeals, one against each of the three sentences imposed. The grounds of appeal are identical.

The statutory provisions governing the appeal

19 The appeal to Murray J was pursuant to s 8(1)(a) of the Criminal Appeals Act 2004 (WA). Leave to appeal on each ground was granted by Jenkins J. Murray J dismissed the appeal.

20 The appeal from Murray J to this court is pursuant to s 16 of the Criminal Appeals Act. The appeal is permitted if a party is aggrieved by a decision of a single judge dismissing an appeal: s 16(2).

21 The appellant claims to be aggrieved on the grounds of appeal set out below. Section 18 of the Criminal Appeals Act provides that subject to div 3, div 2 (other than ss 7, 8, 10 and 13) applies, with any necessary changes, to and in respect of an appeal under div 3 as if the appeal were an appeal under div 2. Section 18 further provides that unless the context requires otherwise, references in div 2 to a court of summary jurisdiction are to the Supreme Court sitting in its General Division, and references to the Supreme Court are to the Court of Appeal.

22 Section 9 in div 2 provides that the leave of the Supreme Court is required for each ground of appeal and that the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. That section applies to this appeal and as a result, leave is required in relation to each ground. Section 14, which is also made applicable to this appeal, provides that even if a ground of appeal might be decided in favour of the appellant, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred: see s 14(2).

23 On an appeal against sentence, the court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard: s 14(5).

24 During oral submissions, reference was fleetingly made to the fact that after the appellant was convicted it had obtained retrospective approval for the development. As a result the parties were given the opportunity to file subsequent written submissions. Submissions from both parties and an affidavit from the respondent were filed and have been taken into account. For the reasons given below, the fact that there was retrospective approval was not mitigatory.

25 It is not necessary to set out the grounds of appeal, which are needlessly lengthy. There are six grounds as follows:

(a) Ground 1 alleges that the magistrate erred and Murray J erred in upholding the magistrate's statement that the deviations presented the respondent with a fait accompli.

(b) Ground 2 alleges that the magistrate erred and Murray J erred in upholding the magistrate's conclusion that the offences were in the top range of seriousness.

(c) Ground 3 alleges error in that the magistrate overlooked that the appellant was a first offender, or alternatively gave insufficient weight to the appellant's lack of any record.

(d) Ground 4 alleges error in the sense that Murray J should not have found that the offences were 'brazen' and for the appellant's 'own commercial reasons and convenience', that the appellant knew that the respondent was unlikely to be able to cause the demolition of the building and that the offences caused the respondent a great deal of trouble.

(e) Ground 5 alleges error on the basis that the magistrate gave insufficient weight to certain facts which are not in dispute.

(f) Ground 6 alleges that the sentences were manifestly excessive. In the submissions the appellant states that the complaint is about the sentences 'considered globally or in relation to each offence'.

26 It is not enough in a sentencing appeal that an appellate court might have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665.

27 Ground 6 contends that the sentences were manifestly excessive. That ground does not depend upon any express error being detected. It depends upon an inference of error arising from the sentence imposed: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325. The fact that a sentencing judge expressly had regard to all relevant considerations does not answer the question of whether a sentence is manifestly excessive. To determine that question, it is necessary to view the sentence in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342.

28 Grounds 3 and 5 can be disposed of immediately. They allege that insufficient weight was given to matters which the magistrate clearly took into account. An allegation that a sentencing court failed to give a matter sufficient weight cannot succeed unless it amounts to a failure to exercise the court's discretion: Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519, Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243 [44]. There was no such failure in this case. Grounds 3 and 5 must therefore be dismissed.

29 Ground 1 alleges that the magistrate erred in stating that the appellant's conduct, in proceeding as it did, was doubtless 'in the hope that the council would submit under the pressure of a fait accompli'. That expression simply means 'accomplished fact'. When the respondent inspected the building site on 16 August 2007, it was an accomplished fact that the building had been constructed without planning approval, without a building licence, contrary to the stop work notice and contrary to the plans originally submitted to the respondent. The magistrate's observation was entirely apt. It was open to the magistrate to infer that the appellant did hope that the council would accept what the appellant had done. The fact that steps could have been taken to remedy the situation is irrelevant to the appellant's expectation. There is no merit in ground 1.

30 By ground 2 the appellant contends that the offences were not in the top range of seriousness, but in the lower range of seriousness. That contention was said to be supported by three cases, namely Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81, Peat Resources of Australia Pty Ltd v Rodney William Brown Chief Executive Officer City of Cockburn [2002] WASCA 342 and Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37 where different penalties were imposed in different circumstances. This contention is really part of ground 6 which alleges that the sentences were manifestly excessive. There is no separate point to be considered and therefore, for the reasons to be given below, ground 2 has no merit.

31 Ground 4 contends that the magistrate should have found that there were compelling reasons for all deviations from the approved plan and that Murray J should have found likewise and erred in not having so found. The appellant in written submissions, accepts that the reason it advanced for the deviations and the appellant's attempts to liaise with the respondent, did not wholly excuse the appellant's conduct. The appellant in those submissions accepted the proposition that even if the deviations were necessary or desirable, approval for deviations should have been obtained before the plans were departed from. The appellant contends that the magistrate erred by not taking proper account of the appellant's reasons for undertaking work and its efforts at liaising with the respondent. This contention does not reveal any error. The appellant's reasons for undertaking the work and its efforts at liaising with the respondent were taken into account. Alleging that the magistrate did not take 'proper account' of those reasons is not to allege an error of law. The reference to the magistrate's comments about 'fait accompli' has been dealt with in ground 1.

32 Ground 6 alleges that the sentence was manifestly excessive. The submissions assert that this was a complaint about the individual sentences and the total sentence.

33 This ground was advanced primarily on the basis that the appellant asserted that the offences were not in fact brazen offences at all; that they were not in the top half of the range of seriousness for this type of offending, and that the three cases referred to, namely Swan Bay Holdings Pty Ltd; Peat Resources and Dodd and Dodd provided examples of sentences in cases of offending which were said to be more serious or culpable than the offending in this case. Therefore, it was argued that these three cases set a range of sentences customarily imposed for serious offending and that because the sentences imposed fell outside the range revealed, they were manifestly excessive.

34 The appellant's contention that this was not brazen offending must be rejected. The appellant well knew that it did not have planning approval; that it did not have a building licence and that it was continuing with the building and ignoring a stop work notice. Furthermore, the appellant proceeded to construct buildings which were significantly different from those which had been approved in the lapsed application for planning approval. This was unquestionably brazen offending. It was offending which was, as the magistrate described, in the top half of the range of seriousness for this type of offending. It was open to the magistrate to conclude that the building was constructed in the hope that the respondent would submit under pressure of a fait accompli.

35 The reference to just three cases involving different facts, does not establish a range of sentences. Even if those cases did suggest some range, the range does not then produce a maximum which displaces the statutory maximum. Each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The mere fact that a sentence is outside the range of other sentences imposed for similar offences does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. See Reid v The State of Western Australia [2012] WASCA 23 [47] - [49].

36 In any event the three cases do not provide support for the appellant's submission. The Peat Resources case is distinguishable on the facts. It involved an easily reversible illegal use of land. It involved the storage and stockpiling of soils and other material. Although there had been previous offences which indicated that the appellant in that case was also guilty of brazen disregard for planning laws, the magistrate in sentencing acknowledged that the appellant was, by the time of the prosecution under consideration, winding down the illegal use and had found another location to which it intended to move if it gained approval: Peat Resources [28]. In the case of Swan Bay Holdings, by the time the appellant came to be sentenced, it had gained retrospective approval for the development which it had previously carried out without approval. This was given some mitigatory weight [67]. The appellant had developed its land by filling and excavating the land; levelling, compacting and sealing it; constructing fences, a roadway, five separate lots or yards, and a toilet and office facilities on one of the yards. The land was used for storage yards and transport depots. The use could have been terminated by the offender simply desisting from the use. In Dodd and Dodd, there was one charge only and a substantial fine was imposed, the fine being a percentage of the permitted maximum, much higher than the fine in this case measured in percentage terms against the maximum. Dodd and Dodd was also a use case.

37 The present case is different. It involved the construction and alteration of buildings. The construction and alteration activities were substantial. Once the buildings were constructed and altered, they remained in existence. Demolition and reinstatement was not a practical option.

38 Also, this is a case where the appellant was carrying out an inner city development involving a heritage building. The fact that the appellant proceeded in complete disregard of the lack of planning approval, lack of building licence and existence of the stop work notice, made this a case where appropriate punishment and personal and general deterrence were of great importance in fixing a sentence.

39 No error was made by Murray J in dismissing this ground of appeal. Ground 6 has no merit.

40 From reasons for decision published in the State Administrative Tribunal (SAT) as Able Lott Holdings Pty Ltd and City of Fremantle [2010] WASAT 117, the following is revealed. About four months before the magistrate imposed the convictions in March 2010, the appellant lodged a development application and accompanying development plans for a substantially different development on the site. This development was for 17 one-room and 12 two-room tourist accommodation units, each with en suite facilities. Accompanying the units would be a gym/sauna, pool/spa, laundrette, public atrium with adjoining eatery (restaurant), small bath and an 80-person theatrette at the ground level. The development plans also included a two level commercial tenancy adjacent to Beach Street and a caretaker dwelling as a residence for Mr and Mrs Fazio on the fourth level at the Beach Street façade. The proposed development included a private car park with nine car bays above the pool, spa and theatrette. The appellant initially commenced proceedings in SAT as an application for review by the tribunal of the respondent's deemed refusal of the development application. Following the commencement of the proceeding, the appellant lodged a further development application incorporating a slab linking two parts of the development and a common ablution facility. This application was incorporated into the proposed development the subject of the proceedings in SAT. When invited by SAT to reconsider its decision in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA) the respondent refused the development application on the grounds of inadequate car parking, inappropriate vehicular access arrangements and drainage and flooding issues.

41 A hearing was conducted in SAT in July and August 2010 and, on 17 August 2010, having conducted the hearing as an application for review, SAT allowed the application. The respondent's decision to refuse development approval was set aside and was substituted by a grant of development approval which was, however, subject to 40 conditions.

42 The affidavit and written submissions filed by the respondent reveal that the conditions have not been complied with. One of the conditions, condition 31, required prompt construction of a retaining wall at the rear of the site to address the concerns of neighbouring residents: see SAT's reasons for decision [68]. Condition 31 also required the appellant, within one month of the date of the decision, to apply for a building licence to construct the new retaining wall and to construct the retaining wall within four months of the issue of the building licence. Despite the appellant agreeing to the requirements of condition 31 (SAT decision [68]), the appellant did not apply for a building licence until four months after the date of the decision and the appellant has still not constructed the retaining wall despite the building licence having been issued on 25 March 2011.

43 Condition 40 required the development to be completed within a nominated period of time. The appellant was required to submit an application for a building licence for the whole development, other than those parts the subject of condition 31, within five months of the date of the decision. The appellant was then required to complete the development within two years of the issue of the building licence, failing which the development approval would lapse and would no longer be valid. Despite agreeing to the imposition of condition 40 (SAT decision [70]), the appellant did not submit an application for a building licence until 4 May 2011, and the respondent has been unable to issue the building licence because the appellant has failed to provide the additional information requested by the respondent, in order to process the application. The respondent considers that there is no prospect of the development being completed in the time specified by SAT, and that the most likely outcome is that the retrospective approval will lapse as a result of the appellant failing to comply with condition 40.

44 The appellant submits that the fact of the conditional retrospective approval is a relevant mitigatory factor. The appellant relies upon Swan

Bay Holdings [84]. It is true that in Swan Bay Holdings, the existence of retrospective approval was recognised as a mitigating factor although it was not one weighing so decisively in favour of the appellant that it displaced the need for a significant penalty.

45 The fact that retrospective approval to a development is given, may be of some mitigatory value. For example, a development might proceed without approval in circumstances where the developer believed (perhaps negligently) that an employee had applied for and obtained approval. If the negligent failure to obtain approval was followed by a prompt application and approval and if the work carried out on site had been in accordance with the proposed and approved plans, then the subsequent approval might be mitigatory. However, the fact of subsequent conditional approval in this case provides no mitigation at all. In fact, it demonstrates the continued failure of the appellant to comply with the law.

46 As a result, none of the grounds have any reasonable prospect of succeeding and for that reason leave to appeal should be refused in relation to each ground with a consequence that the appeal is taken to be dismissed: see s 9(3) of the Criminal Appeals Act.

47 The formal order of the court should be that the appellant's application for leave to appeal on each ground is dismissed.