BEYDOUN -v- CITY OF STIRLING [2015] WASC 25 (27 January 2015)

4 The learned Magistrate concluded that Mr Beydoun, Mr Akkach and Pearl Asset were guilty of each of the charges. She published detailed written reasons for that conclusion (Decision). The learned Magistrate imposed a single fine on each offender. Mr Beydoun was fined $15,000, Mr Akkach was fined $5,000 and Pearl Asset was fined $20,000.

5 Mr Beydoun, Mr Akkach and Pearl Asset each appeal against their conviction and sentence. Each of them has a right of appeal to this Court from the Decision,[2] subject to the grant of leave to appeal on each appeal ground.[3] The grant of leave requires that the Court be satisfied that each ground of appeal has a reasonable prospect of success.[4] The application for leave to appeal in each case was ordered to be heard at the same time as the appeal itself.

6 For the reasons set out below, there will be a grant of leave in respect of grounds of appeal 1, 2, 3 and 4 advanced by Mr Beydoun, but not in respect of ground 1A. Ground 1A had no real, rational and logical prospect of succeeding and was not arguable.[5] However, the appeal by Mr Beydoun against his conviction, and against the sentence imposed on him, should be dismissed.

7 There will be a grant of leave in respect of grounds of appeal 1, 3 and 4 advanced by Mr Akkach, but not in respect of ground 2. Ground 2 had no real, rational and logical prospect of succeeding and was not arguable. However, the appeal by Mr Akkach against his conviction, and against the sentence imposed on him, should be dismissed.

8 There will be a grant of leave in respect of ground of appeal 1, 3 and 4 advanced by Pearl Asset, but not in respect of ground 2. Ground 2 had no real, rational and logical prospect of succeeding and was not arguable. However, the appeal by Pearl Asset against its conviction, and against the sentence imposed on it, should be dismissed.

9 Pearl Asset required an extension of time in which to appeal, having filed its Notice of Appeal 12 days out of time. No explanation was offered for the delay in lodging the Notice of Appeal. However, the City did not oppose the grant of an extension of time, and in all of the circumstances I am prepared to grant an extension of time to Pearl Asset in which to commence the appeal.

10 There is a significant overlap between the appeals against conviction and the appeals against sentence. Accordingly, I deal with each appellants' grounds of appeal against conviction, commencing first with Mr Beydoun's grounds of appeal, before proceeding to deal with the appeals against sentence.

11 In these reasons, I deal with the following matters:

1. Factual background;
2. The offence the subject of each of the charges;
3. The Decision;
4. Mr Beydoun's appeal against conviction:

(b) Ground 1: whether the learned Magistrate erred in finding that Mr Beydoun was using the Premises for a restaurant;

(c) Ground 1A: whether the dates of the offences constituted an element of the offences;

(d) Ground 2: whether the learned Magistrate erred in finding that the Premises were being used as a 'Restaurant' as defined in TPS2.

1. Mr Akkach's appeal against conviction;
2. Pearl Asset's appeal against conviction;
3. The appellants' appeals against sentence:

(c) Ground 3: no error in the learned Magistrate's reasons;

(d) Ground 4: the sentences imposed were not manifestly excessive.

12 There was no dispute that in January 2002, an application was made pursuant to TPS2 for a development at 13A Wanneroo Road Joondanna, namely to use the premises for 'Kebabs, Sweets and Pastries and Café'.[6] The applicants were described as Dung Nguyen, Quang Nguyen and Pearl Asset Pty Ltd and the contact person in respect of the application was John Beydoun. There was also no dispute that an approval to commence that development was granted on 12 February 2002. The approval was for a 'Take Away Food Outlet'.[7] That approval was subject to conditions, including the following:[8]

1. There shall be no increase to the seating capacity.

1. The premises being used for takeaway food only and that consumption of food on the premises is NOT PERMITTED.

13 At the time of the offences, TPS2 did not contain any reference to 'Takeaway Food Outlet' as a permitted use of premises. When TPS2 was originally gazetted, the term 'Take Away / Fast Foods' was defined to mean:[9]

a building or portion of a building wherein food is prepared and offered for sale for consumption principally off the premises and includes in the case of industrial zones, a lunch shop.

14 I mention for completeness that the definition of 'Take Away / Fast Foods' was deleted from TPS2 in August 2008. At the same time the following definition of the term 'Fast Food Outlet' was inserted into TPS2:[10]

premises used for the preparation, sale and serving of food to customers in a form ready to be eaten without further preparation, primarily off the premises.

15 Between 2002 and early 2008, a business known as Baba's Café was conducted from the premises at 13A Wanneroo Road Joondanna.

16 In late 2007, either Mr Beydoun or Pearl Asset (no finding was made by the learned Magistrate as to the identity of the lessee) took over the lease for the adjoining shop, at 13B Wanneroo Road Joondanna, which had formerly operated under the name 'Bells Kitchen'. An officer of the City gave evidence that an approval existed under TPS2 for the use of the premises at 13B Wanneroo Road as a shop.

17 On 14 March 2008, the City granted a building licence to undertake work at the Premises. The licence was for work described as 'Commercial Building fit out to Baba's Kebab Café', but the approved drawings which accompanied the licence referred to Shop 13A and 13B Wanneroo Road, and indicated that both 13A and 13B were to be fitted out as one combined premises.

18 In late 2008, officers of the City including Mr David Spencer, a senior planning officer, attended at the Premises and met with the occupants. Mr Spencer's evidence was that 13A and 13B Wanneroo Road were being used as one premises, with no dividing wall between them, using the name 'Little Lebanon Café'. Mr Spencer formed the view that food was being consumed on the Premises and that a restaurant (as that term was defined in TPS2) was being operated at the Premises.

19 Mr Spencer subsequently checked the City's records and ascertained that the planning approval for 13A Wanneroo Road was for the use as a Take Away Food Outlet, subject to various conditions including those set out above, while in respect of 13B Wanneroo Road, an approval was in place for the use of the premises as a shop. In January 2009, Mr Spencer wrote to the Little Lebanon Café's proprietors and requested that they lodge an application with the City for a change of use from a 'Take Away Food Outlet' to a 'Restaurant'.

20 It was an agreed fact between the parties at trial that the Premises were zoned 'Business' under TPS2. There was no dispute that in order to operate a restaurant from a property zoned 'Business' under TPS2, a planning approval from the City (that is, the Council) was required for the premises in question. It was an agreed fact that no such approval had been given for the use of the Premises as a Restaurant under TPS2 on either 2, 3 or 5 May 2009, or on 9 September 2009. (Having regard to those agreed facts, it follows that such an approval could not have been given for the use of the Premises as a restaurant on 3 September 2009 either.)

21 An application for a change of the use of the Premises was lodged (the Application) although the Application was not in evidence at the trial. The Application was advertised, and the City received various submissions in support of and in opposition to the Application. The Application was considered by the City's Planning and Development Committee (the PD Committee) on 14 April 2009 and on 12 May 2009. The PD Committee subsequently made a recommendation to the Council that it should not grant the approval sought in the Application.

22 In early May 2009, Mr Beydoun and Mr Akkach made a submission to the PD Committee in support of the Application (the Submission). A copy of the Submission was in evidence. It addressed various matters which appear to have been raised by the City as concerns in relation to the Application. In addition, it contained a statutory declaration made by Mr Beydoun on 8 May 2009 (the Statutory Declaration) which I address below.

23 On 19 May 2009, the Council resolved to refuse the Application on various grounds, to advise the applicant for the change of use to 'cease operations as a Restaurant (Little Lebanon Cafe) from the property forthwith', and that 'should the applicant not cease operations within 28 days of Refusal notification then the City's Manager Health and Compliance INSTIGATE appropriate legal action without further reference to Council' (the Council's Decision).

24 Notice of the Council's Decision was provided to the proprietors of the Little Lebanon Café by letter dated 26 May 2009.

25 Further, on 28 May 2009 Mr Morrison, Manager Health and Compliance, for the City wrote to Mr Beydoun at Little Lebanon Café advising of the Council's Decision to refuse the Application and provided a copy of the City's Refusal for Approval to Commence Development dated 28 May 2009. Mr Morrison advised Mr Beydoun to cease operations as a Restaurant (Little Lebanon Café) from the premises within 28 days, failing which legal action would be instigated. Mr Morrison also advised that because Little Lebanon Café's operation as a Restaurant had commenced without approval, legal action would be considered.[11]

2. The offence the subject of each of the charges

26 Clause 1.3.5.1(a) of TPS2 provides:[12]

Subject to Clauses 1.3.5.1(b) and (c) all use or development of land zoned or reserved under this Scheme requires the prior approval of the Council.

27 (Clause 1.3.5.1(b) is not presently relevant - it deals with certain kinds of 'development', described in sch 17 to TPS2, that do not require the Council's approval while cl 1.3.5.1(c) deals with the form of the application for the Council's approval.)

28 The City alleged that Mr Beydoun, Mr Akkach and Pearl Asset had breached s 218(a) of the PD Act (by contravening the provisions of TPS2) by trading as a restaurant at the Premises without first obtaining the approval of the City for that use, as required by cl 1.3.5 of TPS2. I digress to observe that the appellants were not charged with failing to comply with a condition of the approval for the use of the Premises (or at least of 13A Wanneroo Road) as a Take Away / Fast Foods outlet. Rather, the prosecution concerned using the Premises for a specific use, namely as a restaurant, for which the prior approval of the Council had not been obtained.

29 In order to prove each of the charges against the appellants, the City had to prove beyond a reasonable doubt that each appellant had contravened the requirements of TPS2 in that each of them used the Premises as a Restaurant, and that no approval had been given by the Council for the use of the Premises as a Restaurant. The last element was not in dispute.

30 The term 'Restaurant' was defined in TPS2 to mean:[13]

a building or portion of a building wherein food is prepared solely for sale and consumption within the building or portion thereof and the expression shall include a licensed restaurant, cafe or nightclub, and also includes a restaurant at which food for consumption outside the building, or portion thereof, is sold where the Council is of the opinion that that forms only a minor part of the business.

31 It can be seen that this definition has two alternative limbs.

32 On the question whether the Premises were being used for a restaurant, the learned Magistrate's reasoning was, in summary, as follows. The learned Magistrate noted that the definition of restaurant in TPS2 required satisfaction that food was prepared solely for sale and consumption within the building, or portion thereof. An establishment which supplies takeaway food was expressly included in the definition of restaurant, subject to the Council being satisfied that it forms only a minor part of the business.

33 Her Honour found that on the offence dates, Little Lebanon Café was being operated as an establishment at which food was prepared on site for sale and consumption on the Premises. That this occurred on 2 and 3 May 2009 was evident from photographs supplied by Mr Beydoun in the Submission and from the evidence of three witnesses: Mr Bhatti, Mr Amirthalingam and Ms Amirthalingam.

34 In addition, Mr Akkach's evidence was that in September 2009 Little Lebanon Café was operating in the same manner as in May 2009 and this was consistent with the other evidence, including Mr Bhatti's evidence.

35 The learned Magistrate found that the Premises had been refurbished and expanded from a mere takeaway outlet to cater for patrons consuming food, seated at tables on site, and this was confirmed by a sign at the front of the Premises.

36 The learned Magistrate was satisfied that food was not prepared solely for consumption by patrons within the Premises, and hence that the use did not come within the first limb of the definition of 'Restaurant' in TPS2. The learned Magistrate found that it was intended that food would also be prepared and sold for consumption offsite. The question then was whether the business conducted at the Premises came within the second limb of the definition of restaurant in TPS2, namely that food was prepared and sold for consumption outside the building where the Council was of the opinion that that formed only a minor part of the business. The learned Magistrate held that the use of the Premises fell within this part of the definition of 'Restaurant' in TPS2, for the following reasons.

37 First, she concluded that the fact that a wholesale sweet business was also operating from the Premises was irrelevant to whether a restaurant was being operated at the Premises.

38 Secondly, the learned Magistrate noted that the definition of 'Restaurant' in TPS2 required that the Council be of the opinion that takeaway food was a minor part of the business, and there was no evidence that the Council had delegated its authority to form an opinion to Mr Spencer or to any other officer.

39 Thirdly, the learned Magistrate found that the Council had formed the opinion that a restaurant was being operated at the Premises, having regard to the evidence of the Council's Decision, to its direction that the applicant be advised to cease operations as a restaurant forthwith, and to the specific reference in the Council's decision to TPS2.

40 Finally, the learned Magistrate rejected a submission advanced on behalf of the accused that the court was required to determine if the Council's opinion was objectively reasonable. She concluded that:[14]

there is no foundation for that proposition in TPS2. The extended definition of restaurant simply requires the Council to be of the opinion that sales of takeaway food form a minor part of the business. The words 'where Council is of the opinion that' are conclusive. No objective determination is required. In those circumstances the City is not required to adduce evidence to establish that its opinion was objectively reasonable.

41 The learned Magistrate rejected evidence given by Mr Akkach that photographs which formed part of the Submission were intended merely to demonstrate that the Premises could be used as a proper restaurant, and also rejected his evidence that a trial was conducted in April and May 2009 of the use of the Premises, for the same purpose.

42 The learned Magistrate also found that Mr Beydoun was 'misleading in his evidence, if not dishonest' and found that he 'sought to displace responsibility for operating a restaurant unlawfully to City officers.'[15] However, she did not reject his evidence in its totality.

43 As for the question whether each of the accused were engaged in the offence as at the dates alleged, the learned Magistrate found that Mr Akkach was involved in the operation of the restaurant from about 5 November 2008 onwards. She also found that Pearl Asset and Mr Akkach were operating the restaurant on 9 September 2009. (That appears to have been a typographical error, and that the learned Magistrate intended to refer to the date of the offence, namely 3 September 2009.)

44 The learned Magistrate concluded that Mr Beydoun was the 'principal architect of the expansion from, takeaway and shop, to restaurant.'[16] The matters which were relied upon by the learned Magistrate in reaching that conclusion were that the Submission was signed by Mr Beydoun and Mr Akkach, the Submission referred to the applicant having spent $233,000 in the development of the Premises, and purchase of Bell's Kitchen, which corresponded with the contents of the Statutory Declaration, the Statutory Declaration made by Mr Beydoun spoke in the first person at all times, including references to 'my restaurant', there was no reference to Pearl Asset in the Statutory Declaration, and Mr Beydoun arranged for approval for the building works and met with Mr Spencer and officers of the City. On the other hand, the learned Magistrate noted that the first reference to Pearl Asset was in correspondence dated 17 April 2009 from Michael Patterson and Associate, solicitors, in which Mr Patterson stated he acted for Pearl Asset and sought that Mr Beydoun, the director of Pearl Asset, be permitted the opportunity to make submissions to the PD Committee, and Pearl Asset was the registered owner of the business name 'Little Lebanon Café Restaurant / Café' from 2 June 2009, together with Mr Akkach.

4. Mr Beydoun's appeal against conviction (a) The grounds of appeal

45 Mr Beydoun's grounds of appeal against his conviction, including the particulars of those grounds, are lengthy. They are set out in full in Appendix 1. In essence, those grounds of appeal can be summarised as being:

1. The learned Magistrate erred in law or in fact in finding that Mr Beydoun was operating Little Lebanon Café in his personal capacity;

1A. The learned Magistrate erred in law or in fact in finding that the dates of the offences did not constitute an element of the offence;

1. The learned Magistrate erred in law or in fact in finding that the Premises were being used for a restaurant.

(b) Ground 1: whether the learned Magistrate erred in finding that Mr Beydoun was using the Premises for a restaurant

46 Ground 1 of Mr Beydoun's appeal contends that the learned Magistrate erred in making a finding that Mr Beydoun was operating Little Lebanon Café under his own name, in partnership with Mr Akkach. The lengthy particulars of ground 1 are directed to the contention that the evidence before the learned Magistrate supported the conclusion that it was in fact Pearl Asset which was in partnership with Mr Akkach at all material times, and that the City put forward no evidence to establish that Mr Beydoun operated the business as a partner in his personal capacity.

47 In summary, ground 1 of Mr Beydoun's grounds of appeal contends that the learned Magistrate made a finding that Mr Beydoun was operating Little Lebanon Café 'in partnership under his own name' when the evidence did not support that finding. Ground 1 of Mr Beydoun's grounds of appeal must fail at the outset because the learned Magistrate did not make the finding for which Mr Beydoun contends in his ground of appeal.

48 In the Decision, under the heading 'Who conducted the restaurant at the premises on the offence dates?' the learned Magistrate addressed the question whether each of the appellants, on the dates of the offences with which each of them was charged, was using the Premises (by operating the restaurant). She concluded that Mr Beydoun was the 'principal architect' of the development of the Premises from a takeaway food outlet into a restaurant and clearly accepted (by her finding that he was guilty of the offences) that Mr Beydoun was using the Premises as a restaurant on 2, 3 and 5 May 2009.

49 The learned Magistrate found that Mr Akkach was involved in the operation of the restaurant with Mr Beydoun from about 5 November 2008, and clearly concluded (again, by her finding that he was guilty of the offences on those dates) that Mr Akkach was operating the restaurant with Mr Beydoun on 2, 3 and 5 May 2009.

50 Finally, the learned Magistrate clearly found that Pearl Asset and Mr Akkach were operating the restaurant in September 2009, which was the date of the offence with which they were jointly charged.

51 The learned Magistrate did not make an express finding that Mr Beydoun was operating the restaurant under his own name, as ground 1 of his grounds of appeal contends. In his written submissions, counsel for Mr Beydoun acknowledged that that was so.

52 Counsel for Mr Beydoun submitted that it was implicit in the conviction that the learned Magistrate found that Mr Beydoun was operating the restaurant in his own right on 2, 3 and 5 May 2009.[17] I do not accept that submission. The learned Magistrate did not make a specific finding that Mr Beydoun was acting in a particular capacity - that is, on his own behalf, or on behalf of Pearl Asset in using the Premises as a restaurant on the relevant dates without the approval of the Council. As I explain below, it was not necessary for her to do so in order to find Mr Beydoun guilty of the offences. Nor did the learned Magistrate make any finding as to whether Pearl Asset was using the Premises as a restaurant on 2, 3 and 5 May 2009. It is not surprising that she did not do so: Pearl Asset was not charged with offences on those dates.

53 Accordingly, ground 1 of Mr Beydoun's grounds of appeal must be dismissed.

54 However, it was clear from the submissions advanced on behalf of Mr Beydoun that the alleged errors at the heart of this ground of appeal pertained to the issue of the capacity in which Mr Beydoun acted in operating the restaurant at the Premises.

(iii) Ground 1 of Mr Beydoun's grounds of appeal was misconceived

55 I should make clear at the outset that nothing in the submissions advanced on Mr Beydoun's behalf disputed the learned Magistrate's findings as to Mr Beydoun's involvement in the operation of the restaurant at the Premises.

56 The learned Magistrate provided an overview of the case in which she observed that since 2002 Mr 'Beydoun and/or a corporate entity had been operating a food outlet at 13A Wanneroo Road' and that 'in or about late 2007 Beydoun and/or a corporate entity took over the lease for the adjoining shop, at 13B Wanneroo Road'.[18] Counsel for Mr Beydoun submitted that this was an acknowledgment by the learned Magistrate that one of the factual issues in dispute was whether Mr Beydoun, and/or a corporate entity, was involved in the matters to be considered.[19] Counsel's submission was that the evidence clearly established that Mr Beydoun had only ever engaged in the business (that is, the restaurant) as a director of Pearl Asset.

57 The contentions at the heart of the case advanced by Mr Beydoun at trial and on appeal were first, that the question whether Mr Beydoun was operating the restaurant in his personal capacity, or as a director of Pearl Asset, was relevant to proof of the offences with which he was charged; and secondly, that if Pearl Asset was using the Premises as a restaurant without the approval of the Council on 2, 3 and 5 May 2009, Mr Beydoun could not also be guilty of that offence on those dates.

58 For the reasons set out below, each basis for ground 1 was misconceived.

Use of land by a person in a particular capacity is not an element of this offence

59 Counsel for Mr Beydoun submitted that in order for the City to prove the offences alleged to have been committed by Mr Beydoun, it was necessary for the City to prove that Mr Beydoun 'was operating the restaurant in his own right, at the time of the alleged offences'.[20] I am unable to accept that submission.

60 An offence will be committed under s 218(a) of the PD Act by a person who contravenes the provisions of a planning scheme. Guilt of that offence depends upon proof that the accused was a person who was subject to the requirements of a planning scheme, and failed to comply with those requirements. The requirement of TPS2 which was not complied with in this case was the requirement in cl 1.3.5.1(a), which is set out above at [26].

61 The first step in understanding the obligation imposed by cl 1.3.5.1(a) of TPS2 is to observe that it is directed to the use or development of land. As I have already mentioned, the prosecution notices in respect of each of the charges alleged that each of the appellants contravened the requirements of TPS2 by trading as a restaurant at 13A and 13B Wanneroo Road Joondanna without first obtaining the Council's approval. There was no reference in the prosecution notice to the 'use' of the Premises, but it is clear from the context that the allegation of trading as a restaurant constituted an allegation of use of the Premises.

62 The word 'use' is not defined in TPS2. I note that the word 'Development' is defined in TPS2 to encompass the use, development or redevelopment of land, and includes building works undertaken on land. However, the disjunctive use of the words 'use' and 'development' in cl 1.3.5.1(a) of TPS2 is an indication that the words are not intended to be synonymous, notwithstanding that as a result of the definition of 'development' in TPS2 a 'development' may include the concept of the use of land.[21]

63 The term 'use' bears a variety of meanings, depending on the context in which it is used, and whether it is used as a noun or a verb. When used as a noun its meaning includes 'the act of employing or using, or putting into service', 'a way of being employed or used, a purpose for which something is used' and 'the enjoyment of property, as by employment, occupation, or exercise of it'.[22]

64 The word 'use' has been given its ordinary meaning within a statutory planning context similar to this case, as comprising 'activities which are done in ... or on the land but do not interfere with the actual physical characteristics of the land'.[23]

65 Accordingly, cl 1.3.5.1(a) requires that the use of the land that is, the activities undertaken on the land must have the approval of the Council, save where TPS2 otherwise provides. The requirement to obtain the prior approval of Council is not expressly directed to a particular person or group of persons. Consequently, the use of land by any person without the prior approval of the Council (save where that approval is not required under cl 1.3.5.1(a) of TPS2) will constitute a failure to comply with the requirements of TPS2.

66 The persons who are obliged to comply with cl 1.3.5.1(a) of TPS2 will therefore be any persons who use or develop land which is zoned or reserved under TPS2. The first and most obvious category of persons in a position to use or develop land is the owners of land, because control of the use of land is one of the fundamental rights of ownership of land. However, it is not only the owner of land who may exercise rights to use or develop that land. Persons who occupy land, or who act on behalf of the owner or occupier of land, or with their authority, may also exercise rights to use or develop the land in question.

67 The terms of TPS2 apart from cl 1.3.5.1(a) also support the conclusion that it is not only the owner of the land who may be required to comply with cl 1.3.5.1(a) of TPS2. Clause 1.3.5.2 of TPS2 provides that:

A person who desires to use land for a purpose which by the provisions of the Scheme is not permitted unless approval is given by the Council, shall make application for such approval in writing to the Council.

68 The application must set out the full name and address of the applicant, and the full name and address of 'all persons having an interest in the land and the nature of their interest'[24] which clearly would include the owner of the land. Furthermore, the application must also be signed by the owner of the land the subject of the application. Clearly, TPS2 contemplates that persons other than the owner of land may apply for approval of the Council to use or develop that land.

69 Because cl 1.3.5.1(a) is not directed to identified users, or classes of users, of land, in order to establish that a person has contravened the requirements of cl 1.3.5.1(a) of TPS2, it is not necessary to establish that the accused was the owner of the land or an occupier of the land in a particular capacity. All that must be established is that the person was in fact using the land for example, that the person undertook activities on the land, or permitted activities to be undertaken on the land - without the prior approval of the Council.

Even if Pearl Asset was using the land as a restaurant on 2, 3 and 5 May 2009, that did not preclude the conclusion that Mr Beydoun was guilty of that offence on those dates

70 The second misconception at the heart of ground 1 is that if Pearl Asset was using the Premises as a restaurant without permission on 2, 3 and 5 May 2009, Mr Beydoun could not also be guilty of the offences alleged.

71 Even if Pearl Asset was the lessee of the Premises, or was also involved in the operation of the restaurant at the Premises, that would not preclude Mr Beydoun's conviction for the offence of failing to comply with the requirements of cl 1.3.5.1(a) of TPS2. Mr Beydoun was the sole director of Pearl Asset. It is a trite proposition that a company can only act through its officers and agents. If a company commits an offence, its officers may be charged with the commission of that offence,[25] whether or not the company is charged.[26] In addition, s 7 of the Criminal Code Act 1913 (WA) provides that when an offence is committed, the persons who may be charged with that offence include not only every person who actually does the act or makes the omission which constitutes the offence, but also every person who does an act or omits to do any act for the purpose of enabling or aiding another person to commit the offence.

72 In Carter v Flatow,[27] Steytler J (as his Honour was then) dismissed an appeal by Ms Carter against her conviction for using land without the necessary approval under a town planning scheme, contrary to the Town Planning and Development Act 1928 (WA). Ms Carter had argued that she was not using the land, but that the land was being used by a company of which she was a director. Ms Carter had been convicted in the Magistrates Court on the basis that she was liable for the offence by virtue of s 7 of the Criminal Code (WA). Steytler J concluded that the evidence supported that finding because it was clear that Ms Carter had knowledge of the facts giving rise to the offence, and provided 'something in the nature of assistance or encouragement, either by act or by word'.[28]

73 A similar argument to that advanced here was advanced, and rejected, in Brown v Campbell.[29] Mr Brown was prosecuted for using land, of which he was the proprietor, for a used car business in breach of planning controls. There was little dispute at trial as to his actions, but he was acquitted by a magistrate on the basis that at all times he was acting as agent of a company of which he was the managing director. The Queensland Full Court upheld an appeal against the acquittal, on the basis that it was clear that Mr Brown was caught by the provisions of s 7 of the Criminal Code (Qld).

74 Whether or not Mr Beydoun was acting on his own behalf, or on behalf of Pearl Asset, when he used the Premises as a restaurant on 2, 3 and 5 May 2009, there is no doubt that he is liable for the breaches of the PD Act of which he was convicted. However, it is unnecessary to explore this issue further because it was not alleged by the City that Pearl Asset was using the Premises as a restaurant without the Council's approval on 2, 3 and 5 May 2009, and because the evidence clearly established that Mr Beydoun was in fact using the Premises as a restaurant by engaging in activities constituting the operation of a restaurant on the Premises, on the dates alleged, without the approval of the Council.

75 That evidence included the Submission made in support of the Application (which referred to the Premises being used for a restaurant) which was signed by Mr Beydoun, the Statutory Declaration made by Mr Beydoun (which made reference to 'my restaurant', and to the fact that if Mr Beydoun were not allowed to trade as a restaurant he would lose his investment), and Mr Beydoun's application for building approval to consolidate 13A and 13B Wanneroo Road into the one premises (the plans for which indicated that the use of the Premises was to be as a restaurant).

76 In addition, although the Application was not in evidence, a letter Mr Spencer wrote in response to the receipt of the Application, to advise that the Application should be advertised, was in evidence. Mr Spencer addressed that letter to the Little Lebanon Café, marked for the attention of Mr Beydoun. That supports the inference that it was Mr Beydoun who made, or submitted, the Application.

77 There was also evidence which linked Mr Beydoun, as Pearl Asset's sole director and shareholder, to the use of the Premises, including to its use as a restaurant. That evidence was a letter dated 17 April 2009 from Mr Michael Paterson, a solicitor, to the City, in which Mr Paterson advised that he acted for Pearl Asset 'which trades as Little Lebanon Café from shops 13A and 13B Wanneroo Road Joondanna'.[30] That letter suggested that the restaurant was being operated by Pearl Asset, and that Mr Beydoun, as the sole director of Pearl Asset, was preparing a written submission to the PD Committee in connection with the Application.

78 Also in evidence was a letter dated 4 June 2009 to the City from Mr Trent Durwood, a senior town planner with RPS Koltasz Smith, town planning and development consultants. Mr Durwood advised that that RPS Koltasz Smith acted for Mr Beydoun and Pearl Asset with respect to the refusal of the Application. Mr Durwood submitted that his client 'did not knowingly commence the operation of a restaurant without approval',[31] was only made aware of that on 6 January 2009, and once aware of that fact, made the Application to address issues associated with the 'Restaurant' land use.

79 In addition, Mr David Eley, who had been a director of Pearl Asset since March 2010, and who had been involved with Pearl Asset as an advisor to Mr Beydoun since the company was incorporated in 1999, gave evidence at the trial. Mr Eley's evidence was that in October 2008, in its capacity as a trustee for Mr Beydoun's family trust, Pearl Asset formed a partnership with Mr Akkach, and started using the name Little Lebanon Café, but that business name was not registered at that time. Mr Eley's evidence was the partnership also operated a restaurant at 200 Main Street Osborne Park, called Little Lebanon Café Restaurant and Café.

80 A business name search for 'Little Lebanon Restaurant / Café', which was in evidence, showed the principal place of that business as being 200 Main Street Osborne Park but indicated that the business also operated from 13A Wanneroo Road. The persons carrying on the business from 2 June 2009 until the date of the extract (9 February 2010) were said to be Pearl Asset and Mr Akkach, although Mr Beydoun was noted as a person carrying on the business with a start date and a cease date of 2 June 2009.

81 Finally, in his evidence at the trial Mr Beydoun referred to Pearl Asset as 'my company'.[32] He said that Pearl Asset conducted the business of Little Lebanon Café in partnership with Mr Akkach and that Little Lebanon Café had always been operated by his company. In cross examination Mr Beydoun denied the suggestion that he operated the Premises in his personal capacity up until 2 June 2009, when the business name extract for Little Lebanon Café indicated that Pearl Asset commenced operating the business.

82 Together with the evidence referred to below at [96] [99], this evidence clearly established beyond a reasonable doubt that Mr Beydoun undertook activities which constituted the use of the Premises as a restaurant. Whether or not he did so on his own behalf, or as a director of Pearl Asset, the evidence supported his convictions for the offences on 2, 3 and 5 May 2009.

83 Accordingly, I would dismiss ground 1 of the grounds of appeal advanced by Mr Beydoun.

(c) Ground 1A: whether the dates of the offences constituted an element of the offences

84 Ground 1A of the grounds of appeal was included as one of Mr Beydoun's grounds of appeal by a grant of leave during the course of the hearing, to which the City did not object. Regrettably, the particulars of the ground which are set out in par (a) (d) of ground 1A were simply copied verbatim from the grounds of appeal brought by Mr Akkach and Pearl Asset. In those appeals, the ground of appeal appeared to be directed to the contention that there was no evidence to establish that the offence said to have been committed on 3 September 2009 was in fact committed on that date. That was not the date of the offences alleged to have been committed by Mr Beydoun. However, on the hearing of the appeal, counsel for the appellants submitted that this ground in respect of each appeal should be 'read as pertaining to all of the charges against each of the appellants, and the complaint is that there was no ... evidence in relation to ... the commission of the offence on the dates set out in each of the charges'[33]. In respect of Mr Beydoun's appeal, and in each of the other appeals, I have approached this ground of appeal on the basis of counsel's submission at the hearing of the appeal.

85 Ground 1A of Mr Beydoun's appeal must be dismissed, for three reasons. First, generally speaking, the date of an offence is not treated as a material fact which the prosecution must prove beyond a reasonable doubt.[34] It has been recognised that statutory provisions may render the specification of a date material (such as in relation to sexual offences where the age of the victim is an essential element of the charge[35]) but an offence under s 218 of the PD Act is not an offence of that kind.

86 Secondly, counsel for Mr Beydoun pointed to s 21(2) of the Criminal Procedure Act 2004 (WA) as an indication that the date of the offence is an essential element of the offence. That subsection provides that (with some exceptions which are not presently relevant) a prosecution of a person for a simple offence must be commenced within 12 months after the date on which the offence was allegedly committed. The same argument was rejected in Mocilac v City of Fremantle[36] by Commissioner Sleight. I agree with his Honour's conclusion and with the reasons he gives.

87 Thirdly, even if the date on which it was alleged that each offence was committed were an essential element of the offence, in my view the learned Magistrate was correct to conclude (as she clearly did, by her finding that the offences were proved) that the offences alleged against Mr Beydoun were committed on 2, 3 and 5 May 2009. In addition to the evidence which supported the conclusion that the Premises were being used as a restaurant (and to which I refer at [96] [99] below), the evidence of Mr Bhatti, Ms Amirthalingam and Mr Amirthalingam supported the conclusion that the Premises were being used for that purpose throughout May 2009. Furthermore, Mr Beydoun attached to his statutory declaration a series of photographs he had taken. Several of those photographs bear handwritten labels indicating that they show customers of Little Lebanon Café, and depict those customers sitting at tables inside the premises reading menus, eating food off crockery, using cutlery, and show table napkins, glass bottles of water and table numbers on the tables. Four of those photographs bear a date stamp of 2 May 2009, two bear a date stamp of 3 May 2009 and one bears a date stamp of 5 May 2009. Mr Akkach gave evidence that he took these photographs, either on 5 May 2009 or during the week before or after that date.

88 Ground 1A of Mr Beydoun's grounds of appeal should be dismissed.

(d) Ground 2: whether the learned Magistrate erred in finding that the Premises were being used as a 'Restaurant' as defined in TPS2

89 Ground 2 of Mr Beydoun's grounds of appeal is concerned with the learned Magistrate's finding that the Premises was being used as a restaurant. Again, the particulars of this ground are lengthy. However, this ground of appeal appears, in essence, to advance two contentions. The first is that the learned Magistrate erred in finding the offence was proved beyond reasonable doubt because the City did not establish beyond reasonable doubt that the Premises were being used as a restaurant. The second contention (which appears to be at the heart of ground 2(e) of the grounds of appeal) appears to be that in so far as the learned Magistrate concluded that the Council formed an opinion relating to the use of the Premises as a restaurant, that that opinion was not reasonably held, but that the learned Magistrate held that the accused could not challenge that opinion on a factual basis.

90 For the reasons set out below, ground 2 of the grounds of appeal should be dismissed.

91 One of the elements which had to be proved was that the Premises were being used as a restaurant. Having regard to the two limbs of the definition of 'Restaurant' in TPS2, the City had to prove either:

(i) that the Premises were being used as a place wherein food was prepared solely for sale and consumption with the Premises (and that could include a licensed restaurant, a café or a nightclub); or

(ii) if it were the case that food was being prepared and sold for consumption both inside and outside the Premises, the City had to prove that the Council was of the opinion that the sale of food for takeaway consumption formed only a minor part of the business.

92 Regrettably, the submissions advanced at the trial, and by counsel for both parties on the appeal, suggest that the parties may at times have lost sight of what had to be proved to establish that the Premises were being used as a restaurant.

The prosecution case and the findings made by the learned Magistrate

93 The case advanced by the City at trial in relation to this element of the offences is not entirely clear from the transcript of the trial. However, having regard to the evidence led at the trial (which left no doubt that some food was being sold from the Premises for takeaway consumption) the City's case was clearly not that the Premises were being used for a restaurant having regard to the first limb of the definition of 'Restaurant' in TPS2.

94 Consequently, the City's case required proof that the Premises were being used as a restaurant having regard to the second limb of the definition of that term in TPS2. It was not necessary or sufficient for the City to prove that the preparation of food for sale and consumption outside the Premises in fact constituted only a minor part of the business undertaken at the Premises. Rather, the City had to prove that the Council had formed that opinion.

95 The City did not adduce any direct evidence that the Council had formed that opinion. There appeared to be some reliance by the City on evidence given by Mr Spencer as to his view of whether the Premises were being used as a restaurant. However, the learned Magistrate also concluded that there was no evidence that the Council had delegated its authority to form an opinion to Mr Spencer, or to another officer of the City. (The point was not argued at the appeal hearing, but it was not suggested by counsel for the City that this was a case where the opinion of an officer of the Council could be treated as the opinion of the Council.[37] It is unnecessary for present purposes to determine that question.) The learned Magistrate thus concluded that it was not possible for the City to rely on Mr Spencer's opinion as to whether the Premises were being used for a restaurant.

96 However, the learned Magistrate found that the Council had formed the requisite opinion that the Premises were being used as a restaurant having regard to the evidence of the Council's Decision. The learned Magistrate found that:[38]

the Council did consider the [Application] on 19 May 2009, refused it and directed that the applicant be advised to 'cease operations as a Restaurant (Little Lebanon Café) from the property forthwith'.

The Council's resolution made specific reference to TPS2. I am satisfied, and find that the Council formed the opinion that a restaurant was being operated at the premises, based upon the advice and/or report of its officer.

97 The learned Magistrate did not specify the officer whose advice or report she concluded the Council had accepted. The Minutes of an earlier meeting of the Council (prior to the date on which it made the Council's Decision), which were in evidence, indicate that the Council received an 'Officer's Recommendation'.[39] As I have already observed, there was also evidence that the Application had been referred to the PD Committee, that that Committee was required to make a recommendation to the Council for its consideration, and that it did make a recommendation. The Council's Decision reflects the terms of the recommendation made by the PD Committee. It thus appears that it was the report of the PD Committee to which the learned Magistrate referred in her reasons for decision.

98 The evidence which was before the Court in relation to the Council's Decision did not expressly indicate that the Council had formed the view that the sale of takeaway food constituted only a minor part of the business. However, the Council clearly formed the opinion that the Premises were being used as a restaurant, as that term is defined in TPS2. It did so in circumstances where as the fact of the Application and the content of the Submission to the PD Committee made clear food was being prepared at the Premises for sale and consumption on the Premises, as well as for takeaway consumption.

99 The learned Magistrate thus appears to have drawn the inference that the Council's opinion that the Premises were being used as a restaurant necessarily, in the circumstances, encompassed the opinion that the sale of takeaway food from the Premises was only a minor part of the business of the Little Lebanon Café.

The learned Magistrate did not err in her finding that the evidence established that the Premises were being used as a restaurant

100 The grounds of appeal do not directly contend that the learned Magistrate erred in relying upon the Council's Decision to draw the inference that the Council had formed the opinion that the sale of takeaway food from the Premises was only a minor part of the business of the Little Lebanon Café. To the extent that such a contention is intended to be encompassed within this ground of appeal, I am not persuaded that the learned Magistrate erred in drawing the inference that she did, for the following reason.

101 The Council's Decision was made in response to the Application. The Council's Decision was made after Mr Beydoun and Mr Akkach were given the opportunity to make the Submission to the PD Committee. That Submission, and the Statutory Declaration which was included within it, indicated that some takeaway food was sold from the Premises. Accordingly, in so far as the Council formed the view that the Premises were being used as a restaurant, that opinion could not have been to the effect that food was prepared solely for sale and consumption on the Premises (that is, the first limb of the definition of 'Restaurant'). However, the Council clearly had in mind the definition of 'Restaurant' in TPS2, and it referred expressly to TPS2 in the Council's Decision. In these circumstances, the only reasonable inference[40] is that the Council must have concluded that although some food was being sold from the Premises for consumption off-site, that the takeaway component of the business constituted only a minor part of Little Lebanon Café's business. In that respect, I do not discern any error in the learned Magistrate's reasoning.

The (other) contentions advanced in ground 2 of Mr Beydoun's grounds of appeal

102 The focus of much of ground 2 of Mr Beydoun's Grounds of Appeal appears to be that the learned Magistrate erred in concluding that the Premises were being used as a restaurant because the evidence established that the sale of food for takeaway consumption was not simply a minor part of the business. To that extent, ground 2 must be dismissed for two reasons.

103 First, the learned Magistrate did not make a finding, having regard to the evidence, that the sale of food from the Premises for takeaway consumption constituted only a minor part of the business. Ground 2 must be dismissed because it attacks a finding which was not actually made by the learned Magistrate.

104 Secondly, despite the fact that much evidence was led by the appellants at the trial in relation to the sale of takeaway food from the business, that evidence was irrelevant to proof of the offences. Proof of the offences required proof that the Council had formed the opinion that the sale of food for takeaway consumption comprised only a minor part of the business.

105 The remaining aspect of ground 2 of Mr Beydoun's grounds of appeal was based on the contention that the Council's opinion, relied upon by the learned Magistrate as establishing this element of the offence, was not reasonably held. Ground 2(e) contended that the learned Magistrate erred in expressing the following conclusion:[41]

With respect to the submission that the City must adduce evidence of the facts relied upon for the purpose of determining whether takeaway sales formed a minor part of the business, the implication is that the Court must determine whether the opinion was objectively reasonable. There is no foundation for that proposition in TPS2. The extended definition of restaurant simply requires the Council to be of the opinion that sales of takeaway food form a minor part of the business. The words 'where Council is of the opinion that' are conclusive. No objective determination is required. In those circumstances the City is not required to adduce evidence to establish that its opinion was objectively reasonable.

106 In his oral submissions, counsel submitted that 'one has to go behind the Council's opinion to make sure it was properly founded'.[42] Although this aspect of ground 2 was not characterised by counsel as amounting to a contention that the Council's opinion was not a valid one, on the basis that it was not reasonably formed, it appears that that was the point to which the argument was directed.

107 There is no doubt that an administrative decision, the validity of which constitutes an element of a criminal offence, or which forms part of the evidence relied upon to establish an element of the offence, in a criminal proceeding, can be challenged in that criminal proceeding if the administrative decision was beyond the statutory power of the person who performed it.[43] However, to the extent that ground 2 can be understood to contend that the learned Magistrate erred in dealing with what was intended to be a collateral challenge to the validity of the Decision ground 2 must be dismissed for the following reasons.

108 First, having regard to the transcript of the trial, the appellants did not actually advance a collateral challenge to the validity of the Council's opinion. It was certainly not expressly raised, and there is nothing in the transcript to suggest that either counsel for the City, or the learned Magistrate, understood that the appellants sought to call into question the validity of the Council's opinion.

109 The case the appellants appeared to advance at trial was that the Court was required to assess whether, in light of the evidence adduced at the trial, the Council's opinion could be said to be reasonable. Although as a general observation, there is force in the submission that all statutory powers should (subject to a contrary indication) be required to be exercised reasonably,[44] the fact that a power is not exercised reasonably will not necessarily result in its invalidity. Traditionally, a finding of jurisdictional error on the grounds of unreasonableness would require a finding that the decision was one which was so unreasonable that no reasonable decision maker could have reached it.[45] In Minister for Immigration and Citizenship v Li,[46] the plurality emphasised that the test for 'manifest unreasonableness' was not limited to that formulation. Manifest unreasonableness will be found in a decision which is arbitrary, capricious or fanciful,[47] a decision which lacks an evident or intelligible justification,[48] or a decision where the result itself 'bespeaks error'.[49] Merely because a decision is unreasonable, in the sense that it is one about which reasonable minds might differ, is not sufficient to render the decision invalid. (A contrary conclusion would blur irretrievably any distinction between judicial review and merits review.) In my view, the appellants did not raise a challenge to the validity of the Council's opinion at the trial.

110 Secondly, to the extent that counsel for the appellants sought to raise that argument for the first time on the appeal, I would not entertain that course. It is well established that a party in criminal proceedings is bound by the conduct of his or her case, and save in exceptional cases will not be permitted to rely on an argument not advanced in the court below.[50] In the present case, a consideration of the validity of the Council's opinion would require a consideration of the terms of the decision and the material before the decision maker. Not all of that material was before the Court below and no application was made to have such material placed before the Court.

111 I should also add that it is not immediately apparent that a challenge to the validity of the Council's opinion on the ground of manifest unreasonableness would in any event have been open. Although the formation of an opinion as to whether a business is a 'restaurant' under TPS2 appears to be a decision made pursuant to subsidiary legislation,[51] the 'opinion' of the Council was arguably a finding as to the existence of a state of facts. Other than for jurisdictional facts (that is, facts on which the decision maker's jurisdiction depends), it is far from clear that findings of fact may be the subject of judicial review on the ground of manifest unreasonableness.[52]

112 Furthermore, having regard to the material which is before the Court, it is far from apparent that the appellants would have had a case that the Council's opinion could properly be characterised as manifestly unreasonable. The question for the Council was whether the sale of food for takeaway consumption formed only a 'minor' part of the business at the Premises. The word 'minor' has a variety of meanings. Within its present context it appears to mean 'lesser, as in size, extent or importance, or being the lesser of two'[53] and

designating the lesser (in any sense) of two things, classes, etc, that have a common designation. Also applied to those members of a class that collectively form a subdivision regarded as being of lesser magnitude, status etc than the rest. Opposed to major.[54]

113 Whether takeaway food sales are a minor part of a business that is, a less important part of a business than the sale of food for consumption on the same premises - may involve consideration of a variety of factors. Within the context of consideration by a council, largely in a planning context, the conclusion is one which is likely to be reached as a matter of overall impression, rather than on the basis of a precise analysis of business revenue, sales transactions, customers, or other matters relating to the operation of the business. Given the fact that the Application for approval to use the Premises as a restaurant was made in circumstances in which the Premises already had approval for use as a takeaway food business, the Council's opinion that the sale of takeaway food formed only a minor part of the business at the Premises does not, at first blush, appear manifestly unreasonable.

114 Thirdly, returning to the alleged error in the reasoning of the learned Magistrate set out at [105], the learned Magistrate's observation that the opinion of the Council was 'conclusive' must properly be understood as a conclusion that it was not for the Court itself to form the opinion whether the takeaway food component was a minor part of Little Lebanon Café's business. Rather, the learned Magistrate was simply pointing out, correctly, that what was required to be proved by the City was that the Council had formed the requisite opinion. Whether that opinion was a valid one was an entirely different question.

115 Ground 2 of Mr Beydoun's grounds of appeal should be dismissed.

116 Mr Akkach's grounds of appeal are also lengthy. There is a considerable degree of overlap with the appeal grounds advanced by Mr Beydoun. Mr Akkach's appeal grounds are set out in full in Appendix 1. Shorn of their particulars, those grounds of appeal against conviction can be summarised as being:

1. The learned Magistrate erred in law or in fact in finding that the Premises were being used for a restaurant;
2. The learned Magistrate erred in law or in fact in finding that the dates of the offences did not constitute an element of the offence.

117 For the reasons set out above in relation to ground 2 of Mr Beydoun's grounds of appeal, ground 1 of Mr Akkach's appeal grounds must be dismissed. To those reasons, and the references to the evidence therein, I need only add that the evidence clearly established that Mr Akkach was using the Premises for a restaurant on 3 September 2009. An extract for the business name 'Little Lebanon Restaurant / Café', which was in evidence indicated that the parties carrying on the business from after 2 June 2009 until the date of the extract (9 February 2010) were Mr Akkach and Pearl Asset.

118 Further, Mr Akkach's evidence was that in September 2009 the restaurant was operating in the same manner as in May 2009 and this was consistent with the other evidence, including Mr Bhatti's evidence about the activities at the Premises in May and in September 2009.

119 For the reasons set out above in relation to ground 1A of Mr Beydoun's grounds of appeal, ground 2 of Mr Akkach's appeal grounds must be dismissed.

120 Like the appeal grounds advanced by Mr Beydoun and by Mr Akkach, Pearl Asset's grounds of appeal are also lengthy. They are set out in full in Appendix 3. Shorn of their particulars, Pearl Asset's grounds of appeal in relation to its conviction are in essence that:

1. The learned Magistrate erred in law or in fact in finding that the Premises were being used for a restaurant;
2. The learned Magistrate erred in law or in fact in finding that the dates of the offences did not constitute an element of the offence.

121 For the reasons set out above in relation to ground 2 of Mr Beydoun's grounds of appeal, ground 1 of Pearl Asset's appeal grounds must be dismissed. Again, to those reasons, and the references to the evidence contained therein, I need only add the references to the additional evidence set out in [117] [118] above.

122 For the reasons set out above in relation to ground 1A of Mr Beydoun's grounds of appeal, ground 2 of Pearl Asset's appeal grounds must be dismissed.

123 It is convenient to deal with the appellants' appeals against sentence together, given the considerable overlap between them.

124 The appellants were sentenced by the learned Magistrate on 25 July 2013 at a hearing immediately following her delivery of written reasons for her decision to convict each of the appellants.

125 The maximum penalty for a breach of s 218 of the Act as at the date of the offences was $50,000 for individuals[55] and $250,000 for corporate offenders.[56] Although a breach of s 218 could also have resulted in the imposition of a daily fine, counsel for the City made clear that the City did not submit that a daily fine should be imposed.[57]

126 Having considered the submissions of counsel for the City and of the appellants, the learned Magistrate sentenced each appellant to a fine, which she described as a 'global' penalty.[58] She imposed a single fine of $15,000 on Mr Beydoun in respect of the three offences of which he was convicted. The learned Magistrate imposed a single fine of $5,000 on Mr Akkach in respect of the four offences of which he was convicted. Finally, the learned Magistrate imposed a fine of $20,000 on Pearl Asset in respect of the offence of which it was convicted.

127 No complaint is made about the fact that the learned Magistrate imposed a single fine in respect of the offences committed by Mr Beydoun and Mr Akkach. Clearly that course was open to her. The offences were part of a series of offences of the same or a similar kind, in respect of which the imposition of a single fine for all of the offences was possible.[59]

128 The learned Magistrate delivered oral reasons for the sentences she imposed on the appellants. Those reasons were detailed and addressed each of the issues that had been the subject of submissions by the parties. In summary, the learned Magistrate's reasons for decision on the sentence made reference to the following matters.

129 First, the learned Magistrate considered the appellants' ability to pay a fine. It was submitted on behalf of Pearl Asset that it was unable to pay a fine of any magnitude due to its financial circumstances. In his submissions on behalf of Pearl Asset, Mr Eley had advised the learned Magistrate that the most recent tax return for the company which was available (for the 2010 financial year) showed that the company made a small loss. The learned Magistrate was, however, informed that 30 people were employed in the business. It was submitted that the imposition of a significant fine may result in the loss of employment for some of the staff working for Pearl Asset in the business. Finally, it was submitted on behalf of Pearl Asset that it was a trustee company only. Mr Beydoun also submitted that any fine imposed would cause hardship to him, as well the possible loss of employment for staff in the business.

130 The learned Magistrate concluded that no evidence had been produced to satisfy the Court that either Pearl Asset or Mr Beydoun did not have capacity to pay a fine. In reaching that conclusion, the learned Magistrate noted that the business continued to operate at the Premises and it was able to support the employment of 30 people (albeit not all on a full time basis). The learned Magistrate concluded that the business enjoyed continuing trade sufficient to enable it to pay those employed and consequently she inferred that the business had capacity to pay fines imposed by the Court.

131 Secondly, the learned Magistrate considered whether the appellants had demonstrated remorse. Both Mr Beydoun and Mr Akkach submitted that they did not consider that they had done anything wrong. It was submitted on behalf of Pearl Asset that the company had done what was required by the City, and had ceased trading or operating as a restaurant after the expiration of the 30 day notice period set out in the Decision and before the date on which it was alleged to have committed the offence of which it was convicted, in September 2009.

132 The learned Magistrate did not accept that submission. The learned Magistrate pointed out, by reference to the documents tendered in evidence, that Mr Spencer visited Little Lebanon Café on 12 December 2008, and wrote to the business on 6 January 2009 to advise that the use of the Premises as a restaurant had not been approved by the Council and advised that an application for approval should be made. The Application was submitted on 18 February 2009. The Council's Decision was set out in a letter to Little Lebanon Café dated 28 May 2009, at which point Little Lebanon Café was advised to cease operation as a restaurant.

133 However, the learned Magistrate had found, by her conviction of Pearl Asset, that the Premises were being used as a restaurant on 3 September 2009. Accordingly, for sentencing purposes the learned Magistrate did not accept that the Premises had ceased to be used as a restaurant before September 2009.

134 The learned Magistrate concluded that no remorse had been shown on behalf of Pearl Asset, Mr Beydoun or Mr Akkach.

135 Thirdly, the learned Magistrate considered the nature of the offending. Her Honour accepted that up until early January 2009, this was not a case of a deliberate, flagrant breach of the requirements of TPS2 in respect of the use of the Premises. She also accepted that Mr Beydoun had sought to obtain retrospective approval for the use of the Premises as a restaurant. However, the learned Magistrate found that from January 2009 when Mr Spencer advised of the absence of any approval for the use of the Premises, and clearly from late May 2009 when the appellants were advised of the Council's Decision to refuse the Application, it had been made clear to Mr Beydoun, Mr Akkach and Pearl Asset that the Council had not approved the Application, and from late May 2009 they were on notice to cease use of the Premises as a restaurant within 28 days. That did not occur.

136 The learned Magistrate concluded that the Premises were used as a restaurant over the period of time between May and September 2009.

137 Fourthly, the learned Magistrate considered the respective roles of the appellants in the use of the Premises as a restaurant. Her Honour was satisfied that it was Mr Beydoun's vision, and his initiative, to expand the use of the Premises to a restaurant. The learned Magistrate was satisfied that Mr Beydoun was the 'prime mover' in the commission of the offences, as compared with Mr Akkach. She found that Mr Akkach joined that enterprise between August and November 2008 but that he was 'not the prime mover'. Rather, his role was to prepare and serve food at the Premises.

138 Fifthly, the learned Magistrate considered the consequences of the offending conduct in this case. Counsel for the City submitted that various consequences of the use of the Premises as a restaurant should be taken into account, including parking issues, noise issues and their impact on neighbours. (These had been the subject of the evidence of Mr Bhati and Mr and Ms Amirthalingam.) The appellants' evidence was that those problems were attributable to a neighbouring business. The learned Magistrate concluded that for sentencing purposes, it was not possible to distinguish between those two businesses in relation to the cause of the problems identified by the witnesses. The learned Magistrate accepted that a contribution to noise and parking issues was made by Little Lebanon Café operating as a restaurant, but it was not solely responsible for causing problems to neighbours in the area as a result.

139 Sixthly, the learned Magistrate referred to the need for any penalty imposed to have a general deterrent effect in respect of the breach of planning laws.

140 Finally, the learned Magistrate took into account the fact that the appellants were first offenders.

(c) Ground 3 of the grounds of appeal should be dismissed

141 Ground 3 of each of the appellants' grounds of appeal was that the learned Magistrate erred in law in failing to give adequate reasons for the sentence she imposed in that she did not state which part of the sentence was a daily penalty and did not adequately state the factual basis for the sentence passed.

142 There is no doubt that magistrates must give adequate reasons for their decisions. That obligation is expressly acknowledged in s 31 of the Magistrates Court Act 2004 (WA). That section makes clear that the reasons given by a magistrate need not constitute a detailed exposition of every piece of evidence adduced or argument advanced in a case,[60] but need only identify those facts the Court has accepted in reaching its decision and the law the Court has applied, and in each case its reasons for doing so.[61]

143 Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language.[62] The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached.[63] The adequacy of a magistrate's reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made,[64] and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced).[65]

144 Counsel for the appellants submitted that the learned Magistrate's reasons were inadequate because she did not identify the level of seriousness of the offence;[66] that in respect of the fine imposed on Pearl Asset 'the learned Magistrate did not identify that the penalty was a daily penalty multiplied by 1 and therefore the Magistrate's reasons do not identify the underlying intellectual process for the decision her Honour reached';[67] and that in respect of the fine imposed on Mr Beydoun and on Mr Akkach, the reasons did not identify which part of the penalty was a daily penalty and did not demonstrate 'any arithmetic to multiple the 3 days by a daily penalty'.[68]

145 I do not accept that the learned Magistrate failed to disclose in her reasons for decision her view of the seriousness of the offences. The learned Magistrate's reasons, which I have summarised at [128] [140] above were, in effect, directed to the question of the seriousness of the offences.

146 As I have already noted, the learned Magistrate accepted that the use of the Premises as a restaurant did not start out as a flagrant breach of the requirements of TPS2, and Mr Beydoun sought to obtain retrospective approval for that use once it was drawn to his attention. Nevertheless, Mr Beydoun and Mr Akkach did not cease the use of the Premises as a restaurant after the absence of approval was first drawn to their attention in January 2009. Furthermore, Pearl Asset did not cease the offending use within the 28 days following notification of the Decision. Accordingly, although the learned Magistrate did not say so in express terms, it is apparent that she considered the offences committed on 2, 3 and 5 May 2009 by Mr Beydoun and Mr Akkach to be of a lesser degree of seriousness than that committed by Pearl Asset and Mr Akkach on 3 September 2009 (and which reflected a continuing course of conduct leading up to that date). She also expressly concluded that as between Mr Beydoun and Mr Akkach, Mr Beydoun's role was the more significant in the commission of the offences.

147 In my view, the learned Magistrate's reasoning process in relation to the seriousness of the offences is readily apparent from those reasons.

148 I also do not accept the contention that the learned Magistrate's reasons for decision were inadequate because she did not state which part of the sentence was a daily penalty.

149 The learned Magistrate sentenced Mr Beydoun in respect of three offences. Each of those pertained to the commission of the offence on a particular date. The prosecution notice did not allege that those offences were committed on a range of dates, nor did counsel for the City submit that that was the case. Counsel for the City expressly did not seek the imposition of a daily penalty in respect of any of the offences. In these circumstances, there is no basis for any inference that the single fine imposed by the learned Magistrate on Mr Beydoun included a component for a daily penalty. In my view, there is no scope for finding fault in the reasons of the learned Magistrate on the basis that she failed to specify what was obvious.

150 The learned Magistrate sentenced Pearl Asset to a fine in respect of the offence of which it was convicted. The City did not contend that the offence was a continuing one (that is, the prosecution notice did not allege that the offence was one which continued between a range of dates), and nor did the counsel for the City suggest that a daily penalty was appropriate. It is apparent that the learned Magistrate sentenced Pearl Asset on the basis that the offence committed on 3 September 2009 reflected a course of conduct which had been ongoing since May 2009. That was reflected in the learned Magistrate's assessment of the seriousness of the offence itself. However, the learned Magistrate clearly did not treat the offence as a continuing offence, and so the imposition of a fine for each day during which the offending took place did not arise. There was no need for the learned Magistrate to refer to an issue which did not arise.

151 The learned Magistrate sentenced Mr Akkach to a single fine in respect of the three offences with which he was jointly charged with Mr Beydoun, and in respect of the offence with which he was jointly charged with Pearl Asset. For the reasons set out above the learned Magistrate's reasoning process in relation to the sentence imposed on Mr Akkach is clear.

152 Ground 3 of each appellant's grounds of appeal should be dismissed.

(d) Ground 4 of the grounds of appeal advanced by Mr Beydoun, Mr Akkach and Pearl Asset: the sentences imposed were manifestly excessive

153 Ground 4 of each appellant's grounds of appeal is that the sentence imposed by the learned Magistrate was manifestly excessive in that it was not commensurate with the seriousness of the offence or offences of which that appellant was convicted.

(i) Principles governing appeals against sentences said to be manifestly excessive

154 An appellate court can only interfere with the exercise of the sentencing discretion if the appellant demonstrates that the judge or magistrate erred in exercising that discretion by making an express error (such as by mistaking 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.[69] Accordingly, an appeal court will not intervene 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.[70]

155 In order to ascertain whether the 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 in the scale of seriousness of offences of this type; and to the personal circumstances of the offender. All aggravating and mitigating circumstances should also be taken into account.[71]

(ii) The range of sentences for offences under the Act

156 I turn now to the sentencing range for a breach of s 218 of the Act. The huge variety of circumstances in which such offences may be committed; the impact on the overall sentence in those cases where a daily penalty is imposed; and the disparity between the penalty for individual and corporate offenders in this context, make the identification of a range of penalties for offences under the Act somewhat difficult, as the following summary indicates.

157 I commence by considering those cases in which the maximum penalty for a breach of s 218 of the Act by an individual was $50,000 plus a daily penalty of $5,000 per day.

158 In Kwa v City of Stirling,[72] an offender with previous convictions and a long history of unlawful use of land, was convicted after trial of unlawfully conducting a backpackers hostel on land. On appeal, the penalty imposed was a single fine of $44,300 comprising a fixed penalty of $10,000 and a daily penalty of $100 for 343 days.

159 In BassoBrusa v City of Wanneroo,[73] two individuals and a company were convicted after trial of five offences of unapproved development of the land. The case bears some similarities to the present case in the sense that the appellants had obtained development approval to build a shed for a saw mill and to use the site for the storage of timber and logs, but went on to use the storage area (rather than the saw mill, where chain saw use was approved) for 20 to 30 minutes of chainsaw operation each day. The use of the chainsaws was considered a continuing operation rather than isolated instances, and the offenders had been warned about illegal use before they were prosecuted. The individuals were fined $10,000 each, and an appeal against that sentence was dismissed.

160 In Callan v City of Fremantle,[74] a husband and wife had used a large shed on their property for the storage of building materials, which were not for use in connection with residence at the property, without the consent of the City of Fremantle. They were each convicted of a breach of the Act for failure to obtain that consent, and fined $18,000 each. McKechnie J held that a total of $36,000 in fines imposed against the joint owners of the land for that breach was manifestly excessive. His Honour imposed a fine of $4000 on each offender.

161 In Goddard v City of Stirling,[75] an individual offender was charged with building extensions to his home, to a value of $155,000 without the prior approval of the Council. He pleaded guilty and co-operated with the City after the breach was discovered. He was fined $30,000. On appeal that fine was not held to be manifestly excessive, having regard to the flagrant nature of the breach and to the fact that the offender was motivated by self-interest.[76]

162 In Paolucci v Town of Cambridge,[77] a father and son with no prior convictions were convicted after a plea of guilty to three breaches of the Act arising from their construction of building works on land without first obtaining the necessary building licence or approvals, and later for constructing the works other than in accordance with the Residential Design Codes. The maximum penalty for the offences of building without a licence and for developing the land without compliance with the provisions of the Residential Design Codes was $50,000 and a daily penalty of $5,000 per day. The offences were considered by the magistrate at first instance to have been premeditated and blatant, and in the case of non-compliance with the Design Codes, was said to have involved intentional deception,[78] although they involved no direct commercial gain.[79] Mr Ray Paolucci (who was the builder) was considered slightly more culpable than his son, Mr Jamie Paolucci.

163 On appeal, Edelman J set aside the fines imposed by the learned Magistrate. In respect of the two offences which involved undertaking a development without approval or compliance with the Design Code requirements, his Honour imposed fines on Mr Ray Paolucci of $6000 plus a daily penalty of $60 per day (a combined total of $15,180) and $4000 plus $50 per day (a combined total of $17,200). Edelman J imposed fines on Mr Jamie Paolucci of $5000 plus $40 per day (a combined total of $11,120) and $3000 plus $40 per day (a combined total of $13,560).

164 In Teissier v City of Rockingham,[80] an individual with no prior offences was convicted following a trial of one offence of a breach of the Act by developing land without approval. The offence was committed when over a period of six months the offender caused approximately 250 truckloads of soil and sand to be delivered to his property, which was a livestock holding facility. The addition of the soil raised the natural ground level of the property, which was prone to flooding. Prior to the commission of the offence he had been warned that he required planning approval to undertake the land fill, and despite that warning he chose to continue, and only sought retrospective planning approval once the landfill was completed. He was fined a single fine $15,000 for that offence. Justice Le Miere concluded that that fine was not manifestly excessive in the circumstances.

165 Cases in this Court in relation to sentences for a breach of s 218 of the Act since the amendment of the Act to increase the maximum penalty for that offence to $200,000 plus $25,000 daily penalty per day, are as follows.

166 In Uxcel Pty Ltd v City of Bayswater,[81] the offender pleaded guilty to a breach of the Act for failing to remove a sign, which had been installed without approval. The presence of the sign was considered to have a low impact and the offence did not involve a commercial decision. A fine of $5000 was substituted for the original fine imposed.

167 In Chong and Success Australia Group Pty Ltd v City of Mandurah,[82] Success Australia, and its director Mr Chong, were convicted of two offences of using land for accommodation without approval, and for the display of a sign without approval. Mr Chong was fined $25,000 plus $1,500 in daily penalties for the first offence and a total of $2,750 in respect of the signage offence. On appeal, Edelman J set aside the penalty for the first offence[83] on the basis that it was manifestly excessive, largely having regard to the fact that the total fines imposed amounted to more than a quarter of Mr Chong's total assets, and that the company was the principal offender. Justice Edelman imposed a fine of $5000 on Mr Chong.

168 In Chen v City of Stirling,[84] Ms Chen and her ex-husband were each convicted of carrying out a development of land without approval contrary to the Act, in that they were operating a brothel from the premises, which use of land was prohibited under the applicable town planning scheme. The City had informed the co-offender that that use of the premises must cease, but it did not. The offence involved a flagrant breach of the planning approvals process. Ms Chen was described by the magistrate as a silent partner in the business, but one who was aware of the City's concerns and yet did nothing. Ms Chen was a single mother with two children. She committed the offence motivated by commercial considerations. Each offender was sentenced to a fine of $20,000 and a daily penalty of $50 per day for 332 days, resulting in a total fine of $36,600 each. Justice Le Miere dismissed the appeal against sentence on the ground that the sentence was manifestly excessive.

169 Turning to the range of sentences imposed on corporate offenders for offences under the Act, I commence by considering those cases in which the maximum penalty for a breach of s 218 of the Act by a corporation was $50,000 plus a daily penalty of $5,000 per day.

170 In Peat Resources of Australia Pty Ltd v City of Cockburn,[85] the offender was convicted following its plea of guilty to using the land without planning consent, by illegally using land for the storage and stockpiling of soil. The offence was a large scale breach as part of a major commercial activity. The offender had three prior convictions for breaching planning laws. The magistrate imposed a fine of $50,000 with a daily penalty of $200 per day for 362 days, resulting in a total fine of $122,400. On appeal that fine was held not to be manifestly excessive.

171 In BassoBrusa, the facts of which are outlined above at [159], the corporate offender was fined $200,000. The appeal against that sentence on the ground that it was manifestly excessive was dismissed.[86]

172 In Dodd and Dodd Pty Ltd v Shire of Mundaring,[87] the offender used land as a salvage / wreckers yard, for the purposes of a substantial commercial business. That use of the land was not permitted under the applicable town planning scheme. The offender had two prior convictions for planning offences and had advanced an untenable defence. The company was fined $120,000 plus a daily penalty of $100 per day, resulting in a total fine of $148,800. An appeal against that sentence, on the ground that it was manifestly excessive, was dismissed.

173 In Swan Bay Holdings Pty Ltd v City of Cockburn,[88] the offender was convicted, after a plea of guilty at the commencement of the trial, of a breach of the Act by carrying out a development without planning approval. The breach involved the levelling, compacting and sealing of the land, and the construction of fences, a roadway and buildings, in order to use the land for storage yards and transport depots. Retrospective approval for the development was, however, sought and given. The company was sentenced to a fine of $150,000, which was not disturbed on appeal.

174 In Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda,[89] the offender was convicted of a breach of the Act by using land for parking commercial vehicles, without approval. The breach was described as a 'large scale operation ... conducted with a flagrant disregard'[90] for the requirement for planning approval, and for which the company had shown no remorse. The company was sentenced to a fine of $100,000 plus daily penalties, resulting in a total fine of $116,900. An appeal against the sentence was dismissed.

175 In Able Lott Holdings Pty Ltd v City of Fremantle,[91] the offender was convicted, after a plea of guilty, of one breach of the PD Act, and two breaches of the Local Government (Miscellaneous Provisions) Act 1960 (WA) arising from development works it carried out to a heritage building in Fremantle. The work was conducted without the approvals required by the PD Act, and building work proceeded without a building licence and approvals required, and in contravention of a stop work notice issued, under the Local Government (Miscellaneous Provisions) Act. The penalty imposed in respect of the offence under the PD Act was a fine of $100,000 and a daily penalty of $500 per day for 162 days, resulting in a total fine of $181,000. (For present purposes, it is not necessary to mention the other fines imposed.)

176 The learned Magistrate viewed the offences as involving a brazen and deliberate attempt to circumvent limitations which applied to it, that the development was conducted for commercial benefit, and that a significant deterrent penalty was warranted. Murray J dismissed an appeal against the sentences, concluding that the learned Magistrate was right to find that the conduct involved constituted serious offending, and that the sentences were not manifestly excessive. An appeal against his Honour's decision was also dismissed.[92]

177 The cases in relation to sentences following the amendment of the PD Act to increase the maximum penalties, and which resulted in a maximum penalty under the Act for a breach of s 218 by a corporation of $1,000,000 with a maximum daily penalty of $125,000, were as follows.

178 In Chong,[93] the facts of which are set out above, Edelman J rejected that part of the appeal which contended that the fines imposed on Success Australia were manifestly excessive and did not disturb those penalties. The company had been fined $50,000 plus $2,500 in daily penalties, totalling $52,500 for the first offence, and $7,500 plus $750 in daily penalties (for two days) totalling $8,250 for the signage offence.

179 In Steelmakers Pty Ltd v City of Swan,[94] the owner of land (Bayblue Holdings Pty Ltd) and the tenant of that land (Steelmakers Pty Ltd) were prosecuted for offences under the Act. Bayblue's conviction for that offence was set aside on appeal and it is not necessary for present purposes to deal further with that aspect of the appeal. In the case of Steelmakers, the charge was that, over a period of six months in 2013, it carried out a development of the land (namely some alterations and additions to a warehouse) and failed to comply with a condition imposed under the applicable town planning scheme, contrary to s 218(c) of the Act. The City's case effectively stated that the conditions with which Steelmakers did not comply concerned entry into a deed as between the City and Bayblue, which had to be drafted by the City's solicitors, and which was only entered into by the City and Bayblue on 30 January 2014. In addition, the City alleged that Steelmakers had not complied with two further conditions of the approval to conduct the development, which concerned repairs, and sealing, kerbing and drainage works to parking and access areas near the warehouse. That work was carried out by 30 January 2014.[95]

180 On the appeal, Kenneth Martin J held that the learned Magistrate had made errors in relation to the sentence imposed on Steelmakers, arising from considerable confusion in the prosecutor's case about the circumstances of the offending. That confusion having been clarified as a result of the appeal, his Honour re-sentenced Steelmakers. His Honour imposed a fine of $15,000 plus a daily penalty of $100 per day, resulting in a total fine of $32,700. He did so on the basis that Steelmakers was a first offender, had entered a plea of guilty at an early occasion, and that its overall level of culpability was on the 'relatively low side'.[96]

(iii) The sentence imposed on Mr Beydoun was not manifestly excessive

181 Counsel for Mr Beydoun submitted that the offences committed by his client were not continuing offences but were committed on 3 separate dates, and involved an easily reversible illegal use of the land as opposed to a contravention involving the construction or alteration of buildings. He submitted that when compared with many contraventions of s 218 of the Act, these offences were 'quite insignificant in issue and impact'[97] as they involved nothing more than trading as a restaurant without approval on three separate dates. Counsel for Mr Beydoun submitted that this was not a case involving a complete disregard for planning approvals, that the offences of which his client were guilty were committed prior to the City's direction that the use of the Premises as a restaurant should cease, and that retrospective approval was sought once the absence of approval was drawn to his client's attention. Counsel for Mr Beydoun also noted that the learned Magistrate did not draw the conclusion that Mr Beydoun and Mr Akkach had made a commercial decision to flout the planning laws. Finally, it was submitted that Mr Beydoun did not have the capacity to pay a substantial fine.

182 In all of the circumstances, I am not persuaded that the penalty imposed on Mr Beydoun was manifestly excessive, for the following reasons. As I have already noted, the maximum penalty available in respect of each offence of which Mr Beydoun was convicted was a $50,000 fine. In a case in which a single fine is imposed that fine must not be more than the total sum of the fines provided in respect of each of the offences. That total sum in this case was $150,000 (given that this were not said to be continuing offences in respect of which a daily fine may be open). The fine imposed on Mr Beydoun for the three offences was $15,000 or 10% of the maximum penalty.

183 As for the seriousness of the offending, in my view, each of the offences in question were at the lower end of the scale of seriousness for offences of this kind, but were by no means at the lowest end of the scale. They involved a use of the land which was easily reversed. While the learned Magistrate found that while there was evidence of some parking and noise problems for neighbouring residents and tenants, that impact was not solely attributed to Little Lebanon Café.

184 The offences should not, however, be regarded as 'quite insignificant' as counsel for Mr Beydoun contended. Planning requirements exist so that local authorities can ensure that the use of land is conducted in accordance with proper and orderly planning principles. At the local level, these have regard to factors as diverse as the location of particular kinds of businesses in different areas throughout a shire, to the adequacy of services and facilities within and near commercial premises having regard to the activities to be conducted there.

185 Although the offences did not start out as a deliberate breach of the requirement for planning approval, nevertheless Mr Beydoun did not desist from using the Premises as a restaurant after the need for approval was drawn to his attention and while his application for approval was under consideration. Furthermore, although the breaches were prosecuted as three separate offences, there is no doubt that the conduct in question had been continuing, unabated, since Mr Spencer visited the Premises in January 2009. In addition, although the learned Magistrate did not make a finding that the offences were motivated by commercial interest, nevertheless it cannot be ignored that the offences were committed within the context of the pursuit of a commercial venture. Finally, the seriousness of Mr Beydoun's offending, at least as compared with Mr Akkach, must take into account the learned Magistrate's finding that he was the principal architect of the transition from takeaway food outlet to restaurant.

186 The written submissions for the appellants sought to suggest that Pearl Asset had been misled by the staff of the City, by way of a mistake of law, into believing that it had obtained the necessary approvals, that it had invested $200,000 into renovating the Premises, and based on that mistaken belief, started to trade as a restaurant.[98] In so far as that submission was intended also to be made in relation to Mr Beydoun[99] I do not accept that it supports the conclusion that the fine imposed on Mr Beydoun was manifestly excessive. The conclusion reached by the learned Magistrate was that use of the Premises as a restaurant did not commence as an attempt to flagrantly flout the planning requirements. Nevertheless, from January 2009, it was made clear to Mr Beydoun and Mr Akkach that they did not have planning approval, and yet they continued to carry on the use of the Premises as a restaurant, while awaiting the outcome of the application they subsequently made for planning approval.

187 The range of sentences for single offences under the Act committed by individuals, when the maximum penalty was the same as in this case, lies between a fine of $4000 for a breach at the lowest end of the scale of seriousness (in Callan) to a fine of $30,000 (in Goddard) and to a fine of $10,000 plus daily penalties totalling $34,300 (in Kwa) for offending at the more serious end of the spectrum.

188 In terms of Mr Beydoun's personal circumstances, although he submitted that he did not have capacity to pay a significant fine, he did not provide the Court with any information in relation to his capacity to pay a fine.[100] Little can be made of that claim in the circumstances.

189 The ground of appeal also contends that the sentence was manifestly excessive given that there was no need for specific deterrence. There are two answers to that submission. First, although Mr Beydoun had no prior convictions, he showed no remorse for the offences, continuing to submit at the sentencing hearing that he had done nothing wrong. Secondly, the cases make clear that general deterrence is an important consideration in sentencing for offences under the PD Act. Hasluck J made this point in Swan Bay Holdings Pty Ltd v City of Cockburn[101] when he said:

Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also on 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.

190 Taking all of these considerations into account, in my view, it cannot be said that a single fine of $15,000 for all three offences was manifestly excessive.

(iv) The sentence imposed on Mr Akkach was not manifestly excessive

191 The submissions advanced on Mr Akkach's behalf in relation to ground 4 were largely the same as those advanced on behalf of Mr Beydoun.

192 The fine imposed on Mr Akkach was a single fine of $5000 in respect of the four offences of which he had been convicted. The maximum penalty for each offence was $50,000 and the total single fine which could have been imposed in respect of those four offences was $200,000.

193 There is no doubt that the sentence imposed was well within the proper sentencing range, largely for the same reasons as are set out above in relation to Mr Beydoun's appeal. In addition, that conclusion follows having regard to Mr Akkach's lesser culpability (as compared with Mr Beydoun) for the offences. I have not overlooked the fact that Mr Akkach was also convicted of the offence on 3 September 2009. That was a more serious offence because it occurred once Mr Beydoun and Mr Akkach had been directed to stop using the Premises as a restaurant.

194 Ground 4 of Mr Akkach's grounds of appeal must be dismissed.

(v) The sentence imposed on Pearl Asset was not manifestly excessive

195 The sentence imposed for the sole offence of which Pearl Asset was convicted was $20,000. At the time, the maximum penalty for that offence, given Pearl Asset is a company, was $250,000.

196 Counsel for Pearl Asset submitted that the offence was not a continuing offence, but was committed on one day, and was 'therefore less serious'.[102] He submitted that the company 'did nothing more than trade as a restaurant without approval on one day'.[103] Counsel for Pearl Asset submitted that the offence involved the easily reversible illegal use of land, and compared with many other contraventions of s 218 of the Act, was quite insignificant.

197 While I accept that the offence of which Pearl Asset was convicted was at the lower end of the spectrum for offences by corporate offenders, I do not accept that the offence can be characterised as 'quite insignificant' as counsel for Pearl Asset contended. I rely on the matters to which I referred in assessing the seriousness of the offences committed by Mr Beydoun and Mr Akkach at [183] [185] above.

198 However, in my view, the offence was more serious than the offences committed by Mr Beydoun and Mr Akkach in May 2009 because it was committed after the City had issued a directive that the use of the Premises as a restaurant must cease in view of the Council's refusal to grant approval for that use. Moreover, it was apparent from the evidence that the use of the Premises on 3 September 2009 was not an isolated occurrence, but rather that the Premises had continued to be used as a restaurant since May 2009. No explanation was advanced for why the Premises was still being used as a restaurant on 3 September 2009, more than 3 months after the Council Decision was communicated to Mr Beydoun and Mr Akkach. The submission by counsel for Pearl Asset that it could not be said the company should have acted more quickly to cease trading as a restaurant without approval[104] must be rejected.

199 The sentences for offences under the Act committed by corporate offenders are of very limited assistance in the present case. Many of them involved blatant breaches of the Act, involving construction on, or alteration of, land, for commercial benefit, and offending over a considerable period of time (resulting in the imposition of considerable daily penalties) or multiple charges, and consequently total fines in excess of $100,000. A very minor breach (in Steelmakers) involved a fine of $15,000 and daily penalties resulting in a total fine of $32,700. Chong also involved a relatively minor breach and resulted in the imposition of a total fine of $52,500 for the primary offending.

200 The breach by Pearl Asset must be regarded as more serious than these very minor breaches of the PD Act because it was committed after the City issued the clear directive that the use of the Premises as a restaurant should cease, in view of the Council's refusal of the Application.

201 Counsel for Pearl Asset submitted that the fine of $20,000 was a large sum for a small business to pay, particularly in light of the submission made to the learned Magistrate that any significant fine 'may or would result in the loss of employment of employees'.[105] However, little information was placed before the learned Magistrate to assist her to assess Pearl Asset's capacity to pay. Reference was made to the company's tax return, but as the learned Magistrate noted, the business being operated by Pearl Asset was sufficiently substantial that it employed 30 employees. Furthermore, counsel for Pearl Asset submitted that the company had invested $200,000 in renovating the Premises, which also supports the conclusion that the company has the means to pay a fine.

202 Finally, although Pearl Asset had no prior convictions, as the learned Magistrate noted, no remorse was demonstrated on its behalf. Further, as I have observed above, there is a need for the penalties imposed in cases of this kind to have an element of general deterrence.

203 Taking all of these considerations into account, in my view it cannot be said that the fine imposed on Pearl Asset was manifestly excessive.

204 Ground 4 of Pearl Asset's grounds of appeal should be dismissed.

205 Each of the grounds of appeal advanced by Mr Beydoun, Mr Akkach and Pearl Asset should be dismissed.

206 I will hear from counsel as to the orders which should be made to dispose of these appeals.

1. An error of law, in that the finding was against the weight of evidence and of fact, in that the Magistrate found that the accused was operating Little Lebanon Café /Restaurant ("the business") in partnership under his own name on the basis that the Appellant had referred to the business as 'his' in a statutory declaration made in support of planning approval purposes, notwithstanding that:

(a) the Appellant gave evidence that the business partner had always been Pearl Asset Pty Ltd as trustee for the Beydoun Family Trust No 2 of which he was the sole director until 2010;

(b) the Appellant's co-director of Pearl Asset Pty Ltd gave evidence that Pearl Asset Pty Ltd as trustee for the Beydoun Family Trust No 2 was the business partner, which evidence was not referred to or discredited by the Magistrate;

(c) the Appellant's co-accused and business partner Kamar Daoud Akkach gave evidence that his partner was Pearl Asset Pty Ltd as trustee for the Beydoun Family Trust No 2 and not the accused, which evidence was not referred to or discredited by the Magistrate;

(d) there was an exhibit tendered by the prosecuting authority that showed a planning approval related to the business were submitted by Pearl Asset Pty Ltd and not the accused;

(e) there was an exhibit tendered by the prosecuting authority that showed planning consultants acting for the business were instructed by Pearl Asset Pty Ltd;

(f) there was an exhibit tendered by the prosecuting authority dated 17 April 2009, sent to them from the solicitor for Pearl Asset Pty Ltd specifying that he acted for Pearl Asset Pty Ltd as trustee for the Beydoun Family Trust No 2 and that the Appellant was the sole director of Pearl Asset Pty Ltd, which letter pre-dates the offence dates of 2, 3 and 5 May 2009; and

(g) the prosecuting authority put forward no positive evidence to show that the Appellant operated the business as a partner in his personal capacity.

1A. An error of law and fact in that the Magistrate found that the dates of the offences did not constitute an element of the offence when:

(a) the prosecuting authority expressly applied and were granted leave to amend the prosecution notice to change the date of Charge 4 (Prosecution Notice numbers 10 34324 and 10 34325) from 9 September 2009 to 3 September 2009;

(b) the Magistrate relied upon evidence from Beydoun and the Appellant that there was a course of conduct over a period of time, even though the dates of that conduct were not provided;

(c) the prosecuting authority did not elect to prosecute for a continuing offence over a period of time or a range of dates, but elected to specify an offence that took place on different dates; and

(d) the evidence relied upon by the prosecuting authority was dated photographs specifying when the alleged offences had taken place.

1. An error of law and fact in that the Magistrate found that the premises were a restaurant notwithstanding that the Magistrate accepted the statutory definition of restaurant specified that takeaway food could only be a minor part of the business if it was to be a restaurant, when:

(a) the evidence of Beydoun, Akkach and Eley (the codirector of Pearl Asset Pty Ltd) was that the takeaway formed the predominant portion of the business and that the business also operated a retail and wholesale operation selling Lebanese pastries, which evidence was not referred to or discredited by the Magistrate;

(b) the evidence in chief of Spencer, the prosecuting authorities planning officer, was that he had formed the view that the business was a restaurant based on the number of tables and chairs in the premises, and made no mention of the takeaway sales undertaken by the business; and in cross examination confirmed that he had been to the premises 3 times, for 15 minutes the first time when there were no patrons and 2 further times for 5 minutes and he confirmed that he had never entered the kitchen to see if any takeaway food was being prepared and never made any enquiry as to what amount of takeaway food was prepared by the business;

(c) other witnesses for the prosecuting authority gave evidence that they had seen takeaway food being sold at the premises and they had in fact purchased Lebanese pastries to consume of the premises, but had no evidence to offer about the amount of takeaway sales the business made;

(d) the Magistrate concluded that it could be inferred that Spencer had formed the view that takeaway was only a minor part of the business as he had concluded the business was operating as a restaurant, notwithstanding his admission that he did not know what proportion of takeaway food was prepared and his admission that he had made no enquiries about the proportion of takeaway food that was prepared and not even address his mind to the issue; and further

(e) the Magistrate concluded that the Council made a decision that the premises was being operated as a restaurant, based on Spencers reports which made no reference to takeaway food preparation, and that the opinion of the Council was conclusive, and the conclusiveness of that opinion was in effect binding upon the accused as a finding of fact for the purposes of the trial, without any right on the accused to challenge that opinion on a factual basis.

1. The Magistrate made an error of law by failing to give adequate reasons because:

(a) the Magistrate did not state which part of the sentence was a daily penalty;

(b) the Magistrate did not adequately state the factual basis for the sentence passed.

1. The Magistrate made an error of law because the sentence was manifestly excessive.

The sentence was not commensurate with the seriousness of the offences, taking into account:

(a) the circumstances of the offences and in particular that the offences were not continuing offences but offences occurring on 2, 3 and 5 May 2009.

(i) the Appellant's explanation given for the offending during the plea of mitigation; and

1. An error of law and fact in that the Magistrate found that the premises were a restaurant notwithstanding that the Magistrate accepted the statutory definition of restaurant specified that takeaway food could only be a minor part of the business if it was to be a restaurant, when:

(a) the evidence of Beydoun, Akkach and Eley (the codirector of Pearl Asset Pty Ltd) was that the takeaway formed the predominant portion of the business and that the business also operated a retail and wholesale operation selling Lebanese pastries, which evidence was not referred to or discredited by the Magistrate;

(b) the evidence in chief of Spencer, the prosecuting authorities planning officer, was that he had formed the view that the business was a restaurant based on the number of tables and chairs in the premises, and made no mention of the takeaway sales undertaken by the business; and in cross examination confirmed that he had been to the premises 3 times, for 15 minutes the first time when there were no patrons and 2 further times for 5 minutes and he confirmed that he had never entered the kitchen to see if any takeaway food was being prepared and never made any enquiry as to what amount of takeaway food was prepared by the business;

(c) other witnesses for the prosecuting authority gave evidence that they had seen takeaway food being sold at the premises and they had in fact purchased Lebanese pastries to consume of the premises, but had no evidence to offer about the amount of takeaway sales the business made;

(d) the Magistrate concluded that it could be inferred that Spencer had formed the view that takeaway was only a minor part of the business as he had concluded the business was operating as a restaurant, notwithstanding his admission that he did not know what proportion of takeaway food was prepared and his admission that he had made no enquiries about the proportion of takeaway food that was prepared and not even address his mind to the issue; and further

(e) the Magistrate concluded that the Council made a decision that the premises was being operated as a restaurant, based on Spencers reports which made no reference to takeaway food preparation, and that the opinion of the Council was conclusive, and the conclusiveness of that opinion was in effect binding upon the accused as a finding of fact for the purposes of the trial, without any right on the accused to challenge that opinion on a factual basis.

1. An error of law and fact in that the Magistrate found that the dates of the offence did not constitute an element of the offence when:

(a) the prosecuting authority expressly applied and were granted leave to amend the prosecution notice to change the date of Charge 4 from 9 September 2009 to 3 September 2009;

(b) there was no evidence led that the accused breached s.218 of the Planning and Development Act 2005 on 3 September 2009;

(c) the Magistrate relied upon evidence from Beydoun and the Appellant that there was a course of conduct over a period of time, even though the dates of that conduct were not provided;

(d) the prosecuting authority did not elect to prosecute for a continuing offence over a period of time or a range of dates, but elected to specify an offence that took place on specific dates;

(e) prosecuting authority witnesses were unable to provide any details or specific dates about any alleged breach of the Planning and Development Act 2005, save that Lara Bloxham gave evidence that on 9 September 2009 she saw 3 people sitting outside the premises with takeaway coffee cups and she took a photograph of that incident; and

(f) the evidence relied upon by the prosecuting authority was dated photographs specifying when the alleged offences had taken place.

1. The Magistrate made an error of law by failing to give adequate reasons because:

(a) the Magistrate did not state which part of the sentence was a daily penalty;

(b) the Magistrate did not adequately state the factual basis for the sentence passed.

1. The Magistrate made an error of law because the sentence was manifestly excessive.

The sentence was not commensurate with the seriousness of the offences, taking into account:

(a) the circumstances of the offences and in particular that the offences were not continuing offences but offences occurring on 2, 3 and 5 May 2009.

(i) the Appellant's explanation given for the offending during the plea of mitigation; and

1. An error of law and fact in that the Magistrate found that the premises were a restaurant notwithstanding that the Magistrate accepted the statutory definition of restaurant specified that takeaway food could only be a minor part of the business if it was to be a restaurant, when:

(a) the evidence of Beydoun, Akkach and Eley (the codirector of Pearl Asset Pty Ltd) was that the takeaway formed the predominant portion of the business and that the business also operated a retail and wholesale operation selling Lebanese pastries, which evidence was not referred to or discredited by the Magistrate;

(b) the evidence in chief of Spencer, the prosecuting authorities planning officer, was that he had formed the view that the business was a restaurant based on the number of tables and chairs in the premises, and made no mention of the takeaway sales undertaken by the business; and in cross examination confirmed that he had been to the premises 3 times, for 15 minutes the first time when there were no patrons and 2 further times for 5 minutes and he confirmed that he had never entered the kitchen to see if any takeaway food was being prepared and never made any enquiry as to what amount of takeaway food was prepared by the business;

(c) one witnesses for the prosecuting authority gave evidence that he had seen takeaway food being sold at the premises and they had in fact purchased Lebanese pastries to consume of the premises, but had no evidence to offer about the amount of takeaway sales the business made;

(d) the Magistrate concluded that it could be inferred that Spencer had formed the view that takeaway was only a minor part of the business as he had concluded the business was operating as a restaurant, notwithstanding his admission that he did not know what proportion of takeaway food was prepared and his admission that he had made no enquiries about the proportion of takeaway food that was prepared and not even address his mind to the issue; and further

(e) the Magistrate concluded that the Council made a decision that the premises was being operated as a restaurant, based on Spencers reports which made no reference to takeaway food preparation, and that the opinion of the Council was conclusive, and the conclusiveness of that opinion was in effect binding upon the accused as a finding of fact for the purposes of the trial, without any right on the accused to challenge that opinion on a factual basis.

1. An error of law and fact in that the Magistrate found that the dates of the offence did not constitute an element of the offence when:

(a) the prosecuting authority expressly applied and were granted leave to amend the prosecution notice to change the date of Charge 4 from 9 September 2009 to 3 September 2009;

(b) there was no evidence led that the accused breached s.218 of the Planning and Development Act 2005 on 3 September 2009;

(c) the Magistrate relied upon evidence from Beydoun and the Appellant that there was a course of conduct over a period of time, even though the dates of that conduct were not provided;

(d) the prosecuting authority did not elect to prosecute for a continuing offence over a period of time or a range of dates, but elected to specify an offence that took place on specific dates;

(e) prosecuting authority witnesses were unable to provide any details or specific dates about any alleged breach of the Planning and Development Act 2005, save that Lara Bloxham gave evidence that on 9 September 2009 she saw 3 people sitting outside the premises with takeaway coffee cups and she took a photograph of that incident; and

(f) the evidence relied upon by the prosecuting authority was dated photographs specifying when the alleged offences had taken place.

1. The Magistrate made an error of law by failing to give adequate reasons because:

(a) the Magistrate did not state which part of the sentence was a daily penalty;

(b) the Magistrate did not adequately state the factual basis for the sentence passed.

1. The Magistrate made an error of law because the sentence was manifestly excessive.

The sentence was not commensurate with the seriousness of the offences, taking into account:

(a) the circumstances of the offences and in particular that the offences were not continuing offences but offences occurring on 9 September 2009.

(i) the Appellant's explanation given for the offending during the plea of mitigation; and

[1] The charge initially alleged that the offence was committed on 9 September 2009, but on the first day of the trial, the charge was amended by changing the date of the alleged offence to 3 September 2009.

[2] Criminal Appeals Act 2004 (WA), s 7(1) read with s 6.

[3] Criminal Appeals Act 2004 (WA), s 9(1).

[4] Criminal Appeals Act 2004 (WA), s 9(2).

[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & RobertsSmith JJA).

[17] Appellant's Outline of Written Submissions, 14 March 2014 [4].

[19] Appellant's Outline of Written Submissions, 14 March 2014 [3].

[20] Appellant's Outline of Written Submissions, 14 March 2014 [7].

[21] Daniele v Shire of Swan (1998) 20 WAR 164, 173 (Ipp J, Owen J agreeing).

[23] University of Western Australia v City of Subiaco (1980) 52 LGRA 360, 363 364 (Burt CJ); see also Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [36] (Sleight C).

[25] See Criminal Procedure Act 2004 (WA), s 180.

[26] Criminal Procedure Act 2004 (WA), s 180(4).

[27] Carter v Flatow (Unreported, WASC, Lib No 940651, 25 November 1994).

[28] Carter v Flatow (Unreported, WASC, Lib No 940651, 25 November 1994) 7 (Steytler J), citing R v Kenniff & Kenniff [1903] St R Qd 17, 43 (Griffith CJ).

[29] Brown v Campbell; Ex parte Brown (1964) 50 LGRA 143.

[34] WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66, 80 [43] (Kirby J); R v Dossi (1918) 13 Cr App Rep 158, 159 160 (Atkin J); Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [32] (Sleight C).

[35] WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66, 81 [47] (Kirby J).

[36] Mocilac v City of Fremantle [2014] WASC 56; (2014) 199 LGERA 405 [35].

[37] Carltona Ltd v Commissioners of Works [1943] 2 All ER 560.

[40] Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 104 (Gibbs, Stephen & Mason JJ); Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319, 329 330 [25] (McHugh J).

[43] Gedeon v Commissioner of the New South Wales Crime Commission; Dowe v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120, 133 [23]; Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, 79 80, 87, 105, 124, 147 148; Selby v Pennings (1998) 19 WAR 520, 536 (Ipp J), 543 (Wallwork J), 550 (Owen J); Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351, 363 [46] (McLure P), 375 376 [110] (Allanson J).

[44] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 370 371 [88] [92] (Gageler J), citing Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 36 (Brennan CJ) and AttorneyGeneral (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 36 (Brennan J).

[45] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] EWCA Civ 1; [1948] 1 KB 223, 230.

[46] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

[47] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [28], [65].

[48] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [76].

[49] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [85].

[50] A v Corruption and Crime Commissioner [2013] WASCA 288 [110] [112]; Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [13] (Buss JA), [67] (Newnes JA, Pullin JA agreeing); see also Roads & Traffic Authority (NSW) v Graincorp Operations Ltd [2010] NSWCA 317 [114] [115]; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 8; University of Wollongong v Metwally [1985] HCA 28; (1985) 60 ALR 68, 71.

[51] Interpretation Act 1984 (WA), s 5.

[52] Cf The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [148] [194] (Edelman J).

[55] Section 223 of the Act as in force in May and September 2009.

[56] Sentencing Act 1995 (WA), s 40(5).

[59] Sentencing Act 1995 (WA), s 54(1).

[60] Magistrates Court Act 2004 (WA), s 31(1)(c) and (d).

[61] Magistrates Court Act 2004 (WA), s 31(1)(a) and (b).

[62] See, for example, Strahan v Brennan [2014] WASC 190 [90] (Martin CJ).

[63] Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 [36] [37] (McLure J, Steytler P & Johnson J agreeing).

[64] Bennett v Carruthers [2010] WASCA 131 [27] (Massa JA, McLure P & Newnes JA agreeing).

[65] Francis v Todd [2011] WASC 185 [18] (Edelman J); Strahan v Brennan [2014] WASC 190 [92] (Martin CJ).

[66] Appellant's Outline of Written Submissions, 14 March 2014 [69].

[67] Appellant's Outline of Written Submissions, 14 March 2014 [70].

[68] Appellant's Outline of Written Submissions, 14 March 2014 [71].

[69] House 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).

[70] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 672 [15].

[71] Chan 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).

[72] Kwa v City of Stirling [2001] WASCA 370; (2001) 117 LGERA 320.

[73] BassoBrusa v City of Wanneroo [2003] WASCA 103.

[74] Callan v City of Fremantle [2008] WASC 197.

[75] Goddard v City of Stirling [2009] WASC 28.

[76] Goddard v City of Stirling [2009] WASC 28 [15].

[77] Paolucci v Town of Cambridge [2013] WASC 50; (2013) 193 LGERA 388.

[78] Paolucci v Town of Cambridge [2013] WASC 50; (2013) 193 LGERA 388 [103].

[79] Paolucci v Town of Cambridge [2013] WASC 50; (2013) 193 LGERA 388 [104].

[80] Teissier v City of Rockingham [2014] WASC 158.

[81] Uxcel Pty Ltd v City of Bayswater [2013] WASC 5.

[82] Chong and Success Australia Group Pty Ltd v City of Mandurah [2013] WASC 470.

[83] The penalty in respect of the signage offence was not disturbed on appeal.

[84] Chen v City of Stirling [2014] WASC 183; (2014) 203 LGERA 244.

[85] Peat Resources of Australia Pty Ltd v City of Cockburn [2002] WASCA 342.

[86] BassoBrusa v City of Wanneroo [2003] WASCA 103.

[87] Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37; (2010) 199 A Crim R 83.

[88] Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81; (2010) 174 LGERA 1.

[89] Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234.

[90] Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234 [61] (Sleight C).

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

[92] Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39.

[93] Chong and Success Australia Group Pty Ltd v City of Mandurah [2013] WASC 470.

[94] Steelmakers Pty Ltd v City of Swan [2014] WASC 449.

[95] Steelmakers Pty Ltd v City of Swan [2014] WASC 449 [90] - [94] (Kenneth Martin J).

[96] Steelmakers Pty Ltd v City of Swan [2014] WASC 449 [152] (Kenneth Martin J).

[97] Appellant's Outline of Written Submissions, 14 March 2014 [83].

[98] Appellant's Outline of Written Submissions, 14 March 2014 [89].

[99] Cf Ground 4(b) of Mr Beydoun's grounds of appeal.

[100] Cf Sentencing Act 1995 (WA), s 53(2).

[101] Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81; (2010) 174 LGERA 1, 15 [74].

[102] Appellant's Outline of Written Submissions, 14 March 2014 [94].

[103] Appellant's Outline of Written Submissions, 14 March 2014 [103].

[104] Appellant's Outline of Written Submissions, 14 March 2014 [81].

[105] Appellant's Outline of Written Submissions, 14 March 2014 [101].