CARUSO -v- SHIRE OF AUGUSTA - MARGARET RIVER [2016] WASC 379 (23 November 2016)

4 The appellant has appealed against the sentences, pursuant to s 7 of the Criminal Appeals Act 2004 (WA). Leave is required on each ground of appeal, and must not be given unless the ground has a reasonable prospect of succeeding.[1] The question of leave and the merits of the appeal were dealt with at the same hearing on 27 October 2015. During that hearing, leave was granted for the appellant to substitute new grounds of appeal, although two aspects of those grounds were abandoned during the hearing.

5 In summary, the amended grounds, as they remain, are that:

1. The fine imposed by the learned magistrate in respect of the planning offence is manifestly excessive;
2. The magistrate made an adverse finding of fact against the appellant which was not supported by the evidence, or adequately so, namely that the appellant was told by the Shire, prior to 16 January 2015, that he needed planning approval for the work being carried out; and
3. The magistrate erred 'by concluding that the alleged unauthorised works described in the Statement of Material Facts gave rise to the offences ... equally, rather than determining which of the offensive works constituted which offence and dealing with the penalties accordingly'.

6 It can be seen that the first ground relates only to the sentence for the planning offence. Ground 2 alleges a specific error that relates to the planning offence, and was relied upon only in the appeal against the sentence for that offence. Ground 3 alleges a specific error that was relied upon in the appeal against both sentences.

7 For the reasons which follow, I have concluded that leave should be granted in respect of grounds 1 and 2, in that they had a rational and logical prospect of succeeding.[2] However, I have concluded that the appeal on those grounds should be dismissed. In respect of ground 3, I have concluded that leave should be refused. That ground does not have a rational or logical prospect of succeeding, and the appeal on that ground must be dismissed in respect of both sentences.

8 It is convenient to start with the charges. The particularisation of the charges and the legislative framework that underpins them will be of particular importance in the consideration of Ground 3.

9 The formulation of the charges in this case was, with respect, unusual. Section 67(3) of the Interpretation Act 1984 (WA) provides that the procedure for prosecuting and dealing with offences is set out in the Criminal Procedure Act 2004 (WA) (CPA). In accordance with the CPA, the prosecution in this case was commenced by a prosecution notice. The manner in which an offence is to be described in a prosecution notice is set out in sch 1 div 2 cl 5 of the CPA. Subclause (1) provides that the charge must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge and, in particular, must (relevantly for present purposes)

(a) describe the offence with reasonable clarity; and

(b) identify the written law and the provision of it that creates the offence; and

(i) the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and

10 Subclause (2)(a) provides that, for the purposes of subclause (1), it is sufficient to describe an offence in the words of the written law that creates it.

11 Each of the charges in this case consisted of several numbered paragraphs, rather than a single narrative describing the offence. In each case the offence was not simply described in the words of the written law that created it. Each in effect provided particulars of the factual background (the appellant's relationship to the property) and the legislative framework by which criminal responsibility was alleged to have arisen, and a particular that identified the offending conduct in general terms. The date and place of the offences were identified at the start of the prosecution notice and were obviously intended to apply to both charges. Each of the charges met the requirements of paragraphs (b) and (c) of subclause (1), and in respect of the building offence (which was designated Charge No 2) it can be said the offence was described with reasonable clarity in the last paragraph. In respect of the planning offence, the description was less clear. However, it can be discerned that what was alleged was a breach of s 218(a) of the PDA, namely a contravention of the provisions of a planning scheme.

12 For present purposes, it is sufficient to summarise the effect of the charges as follows.

13 The charge for the planning offence alleged that

On 16 January 2015 at Margaret River, the appellant contravened the provisions of a planning scheme, namely the Shire of Augusta-Margaret River Local Planning Scheme No 1, by commencing development of the property at 73 Bussell Highway, Margaret River without prior planning approval.

The charge for the building offence alleged that

On 16 January 2015 at Margaret River, the appellant did building work on the building at 73 Bussell Highway, Margaret River without a building permit being in effect for the building work.

14 The appellant's property is situated within the Shire, which is a district declared pursuant to s 2.1 of the Local Government Act 1995 (WA).

15 Any development on the property is subject to the provisions of the planning scheme for the district, namely the Shire of Augusta-Margaret River Local Planning Scheme No 1 (the Scheme), and, under cl 8.1 of that Scheme, requires approval.[3]

A person must not commence or carry out any development without first having applied for and obtained the planning approval of the local government under Part 9.

17 The Scheme is made under the PDA,[4] and is subsidiary legislation for the purposes of the PDA.[5] 'Development' is not defined in the Scheme, but it is defined in s 4 of the PDA to mean:

(a) any demolition, erection, construction, alteration of or addition to any building or structure on the land;

(b) the carrying out on the land of any excavation or other works;

(c) in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, any act or thing that

(i) is likely to change the character of that place or the external appearance of any building; or

(ii) would constitute an irreversible alteration of the fabric of any building.

18 The definition applies to cl 8.1 of the Scheme.[6]

19 The Shire has the power to grant approval for development that has already commenced or been carried out, but enforcement proceedings under pt 13 of the PDA, including under s 218, may be instituted and proceeded with, notwithstanding the grant of retrospective approval.[7]

20 Section 218 of the PDA provides, relevantly, that a person who contravenes the provisions of a planning scheme commits an offence. Section 223 of the PDA provides a general penalty for offences under the PDA as follows:

Unless otherwise provided, a person who commits an offence under this Act is liable to a fine of $200 000 and, in the case of a continuing offence, a further fine of $25 000 for each day during which the offence continues.

21 Separate from the requirement to obtain planning approval, s 9 of the Building Act provides that a person must not do building work unless a building permit is in effect for that work. The Shire is the 'permit authority', that is, the authority that may grant such a permit, in respect of buildings or incidental structures within the district of Augusta-Margaret River.[8]

22 'Building work' is defined in s 3 of the Building Act to mean, relevantly:

...

(b) the renovation, alteration, extension, improvement or repair of a building or an incidental structure; or

...

(e) site work on any land for the purposes of, or required because of, work of a kind mentioned in

23 It can be seen from the definitions, not unexpectedly, that building work for the purposes of the Building Act can also constitute development under the PDA.

24 The essential facts are summarised in [2] above. They combine facts presented in the Magistrates Court by both the prosecutor and counsel for the appellant. The facts are set out in more detail below.

25 The prosecutor relied on a written statement of material facts that had been made available to the magistrate and was read to the court.[9] He augmented the statement with some additional facts concerning the Shire's response to the appellant's application for planning approval. Leaving out preliminary matters concerning the legislative basis for the need for planning approval and a building permit, the facts stated were as follows:

1. The appellant is the registered proprietor of land located at 73 Bussell Highway in Margaret River (the property),[10] which is within the local government district of the Shire.
2. On 18 November 2014, the Shire became aware that work was being undertaken on the property and that, in particular, a fresh concrete slab had been poured throughout the entire basement of the property.
3. On 8 December 2014, the Shire received an application for planning approval to develop a restaurant extension underneath the existing restaurant on the property.
4. On 9 December 2014, a shire officer attended the property and observed work being carried out.
5. On 18 December 2014, the Shire wrote to the appellant confirming receipt of the application for development approval. The proposed development included:

(a) Extensions to the restaurant area, including construction of a subfloor undercroft restaurant area and a pizzeria;

(d) Installation of heavy steel planter boxes on the street.

1. On 16 January 2015, Shire officers inspected the property and witnessed works being undertaken in furtherance of the proposed development. The work that had been carried out and appeared to be ongoing at that time included:

(a) Re-stumping of the sub-floor area below the restaurant with steel universal beams;

(c) Construction of brick walls to the pizzeria area;

(e) Possible excavation of foundations to enable the pizzeria and cellar to be built; and

1. The appellant was present on 16 January 2015 and admitted to the Shire officers that he knew that he was required to have a building permit. The appellant said words to the effect that 'he wanted to get cracking' and that the Shire would take 4 months to approve the work, with all the bureaucracy.
2. On 16 January 2015, the Shire issued the appellant with a written direction pursuant to s 214(2) of the PDA to stop, and not recommence, the development until approval had been given. The appellant was also advised to stop all work until he had been issued with a building permit.
3. On 27 January 2015, the Shire wrote to the appellant providing initial feedback on the application for development, and requesting amendments and further information. In particular, the Shire informed the appellant that:

(a) The proposed al fresco dining area outside of the property boundary adjacent to Bussell Highway and within the road reserve was not considered appropriate given the Shire's 'al fresco dining policy' and the proximity to the neighbouring service station and the turning movements from the Bussell Highway and Ned Higgins Lane intersection.

(b) The proposed new porches, additions, roof and decks to the site along both the main facades of the building were not supported on heritage grounds. Those heritage grounds were outlined as follows:[11]

Based on the heritage advice given by the regional heritage adviser the Shire does not support the use of any further period detailing of the building which is inconsistent with the style of the original 1930s building. From a heritage perspective, the aim is to retain clear evidence of the design and character of the place which requires avoiding unnecessary additions or alterations to the building.

(c) Based on the same heritage advice, the Shire did not support a proposed addition to the veranda, which was subsequently omitted from the planning approval.

1. On 6 February 2015, the appellant submitted amended plans to the Shire.
2. Planning approval was granted to the appellant on 9 March 2015.[12]
3. The appellant applied for a building permit on 6 May 2015.
4. The Shire issued a permit to the accused on 12 May 2015. It required that the work be carried out by a registered builder.[13]

26 Although the facts stated by the prosecutor were not formally admitted on behalf of the appellant in the Magistrates Court, they were not disputed. However, additional facts were put before the magistrate.

27 Counsel for the appellant in the Magistrates Court tendered a 'chronology', a number of photographs of the property (including photographs showing the defect in the floor that required maintenance work, and the work that was done to fix the defect), and an article from the Augusta-Margaret River Mail newspaper dated 6 February 2013 celebrating the centenary of Margaret River, which outlined the history of Bridgefield and the appellant's acquisition of, and personal investment in, the property.

28 The chronology outlines earlier development carried out by the appellant at Bridgefield, as well as additional facts concerning the work the subject of the charges, as follows:[14]

The appellant was granted planning approval and a building licence for a change of use of Bridgefield from a 21-seat café to a restaurant.

The appellant was granted approval to increase the restaurant size from 21 to 52 seats with 5 parking bays, 'for $16,000 payment to the Shire'.

The appellant made an enquiry with Helen Beswick, Building Services Coordinator at the Shire, about restumping[15] the restaurant floor and excavating below. 'Directed to Kim Luciano for certification.'

The appellant understood that if the work was 'internal', planning approval would be needed only if there was a change of use.

'Plans lodged for Town Planning Approval for extension and repair after establishing what was required.'

The appellant was ordered to stop work, 'at which time floor reinforces (sic), ground excavated and concrete slab laid.'

'Building Permit Granted. Work to the value of $50,000.00 by Registered Builder.'

29 As I understand the entry for 16 January 2015, it was not being suggested on behalf of the appellant that he disputed carrying out the other work described in the prosecution's statement of the facts, outlined at point 6 of [25] above; rather, the three items of work specified in the appellant's chronology had been completed, and the other work was continuing. On the hearing of the appeal, the appellant's counsel, who was not counsel who appeared in the Magistrates Court, did not take issue with the facts read by the prosecutor at first instance.

30 Further facts were outlined by the appellant's counsel in the Magistrates Court, as follows:

1. The appellant moved to Margaret River in 2004, when he bought Bridgefield, which is a heritage listed building made of timber. The building had been in constant need of repair and attention, and it had been 'a love affair for [the appellant] to use all his skills to develop the place as it is'.
2. The appellant owns the property behind Bridgefield, which he developed into short-term accommodation. He also owns the property across the road. All the properties are heavily mortgaged.
3. Late in 2014 the appellant had received several complaints from his guests at the restaurant to say that the floor was moving and they were worried about it. He discovered that the stumps supporting the floor were eroded and that this may have put the building at risk.
4. The appellant went to the Shire and discussed the nature of the problem with the Building Services Coordinator on 30 September 2014. He was told that he would need to have appropriate certification for any work that was to be done and that he would need to make an application to carry out such work.[16]
5. The appellant 'had the view that this was internal work and that, by the Building Act, he didn't require approval if it was going to be internal work'.
6. The appellant's original motivation was to repair the floor. As he started, he realised that if he was going to do the excavation in the basement beneath the floor, which was necessary to repair the floor, he could make use of the space if he 'carried on with the excavation'.
7. The appellant 'knew he would have to lodge an application for planning approval and he knew he would have to get building approval.'[17]
8. After 'seeing the Shire' on 30 September 2014, he started to do the work, 'thinking that if he lodged the appropriate applications he could get a retrospective approval, and that that would take care of the matters.'[18]
9. The appellant then had to make two applications, one for retrospective approval of the work that had been done, and one for approval of work that had yet to be done. He was required to pay two fees.
10. While the appellant admitted telling the Shire officers on 16 January 2015 that he wanted to 'get cracking', he also claimed that he discussed with them the fact that the work was 'internal works' and work that had to be done.[19]

31 It must be said that there was a degree of confusion in the facts stated by the appellant's counsel in the Magistrates Court concerning the appellant's discussions with the Building Services Coordinator on 30 September 2014. At face value, it was an admission by the appellant that, although he only went to discuss the re-stumping, he was told that he would need certification and would need to make an application. As it appears to have been accepted on behalf of the Shire, and was accepted by the magistrate in his findings, that planning approval and a building permit were not likely to be required if all that was being done was maintenance work to secure the floor, the admission by the appellant that he was told he would need certification and to make an application would tend to suggest he raised the prospect of doing work beyond the necessary maintenance. I note that the appellant ultimately used steel supports rather than timber stumps to support the floor. It is not clear from what was said or presented before the magistrate whether that would be regarded as maintenance work for which approval was not required. The appellant's counsel on the appeal could not assist with what interpretation could be placed on the facts stated on behalf of the appellant at first instance, concerning the meeting of 30 September 2014.

32 The other matter about which there is a degree of confusion is the appellant's explanation for his statement to the shire officers on 16 January 2015 that he had wanted to 'get cracking'. The initial submission by his counsel was that it was a reference to the re-stumping,[20] or at least 'internal works' for which he supposedly believed he did not need approval.[21] However, the context in which that statement was said to have been made, as outlined in the prosecution's statement of the facts, was a discussion in which the appellant also said that the Shire would take four months to approve the work, because of the bureaucracy. The appellant's stated imperative to proceed expeditiously must have related, therefore, to work that required approval, which is not consistent with the explanation given on his behalf to the magistrate. As will appear below, the magistrate found that the statement to the Shire officers was an admission by the appellant that he had proceeded with the construction work in the knowledge that he required planning approval and a building permit.

33 On 24 February 2015, the appellant was charged by the Chief Executive Officer of the Shire with the two offences that are the subject of the appeal.[22] The appellant initially contested the charges, entering a plea of not guilty on 28 April 2015, and the matter was listed for a trial in the Magistrates Court at Busselton.

34 On 2 June 2015, the appellant advised the Shire in writing, through his counsel, that he would be 'changing his plea on the day to a plea of guilty to both charges'.

35 In the Magistrates Court, the prosecutor submitted that this was a very deliberate breach of the Act. He relied on the fact that the appellant had acknowledged to Shire offices, both prior to lodging an application for planning approval and after lodging, that he needed the approvals, yet he commenced work prior to making an application for planning approval, and then, after making the application, he continued with the work while the application was being assessed. He submitted that, from the Shire's perspective, the original plan that was lodged required amendment before the Shire would give its approval, so it could not be said that the retrospective approval that was granted was for the same plan or construction that was anticipated when the work commenced. For instance, approval was not granted for the construction of new porches, additions, roof and decks along both the main facades of the building, and, as I noted earlier, based on advice it received from the regional heritage adviser, the Shire did not support the use of any further period detailing of the building which was inconsistent with the style of the original 1930s building. It informed the appellant that:[23]

From a heritage perspective, the aim is to retain clear evidence of the design and character of the place which requires avoiding unnecessary additions or alterations to the building.

36 However, the prosecutor confirmed that the work that was ultimately done was within the planning approval that was granted. The appellant had not completed work prior to approval to such an extent as to leave the Shire with a fait accompli in respect of any of the proposals.

37 The prosecutor emphasised that the plea of guilty was not made at an early stage, and the impact on the Shire's time had been enormous.

38 The appellant's counsel provided information and made submissions in mitigation as follows.

39 The appellant was 66 years of age, having immigrated to Western Australia from Sicily when he was 11. He completed an apprenticeship as a cabinetmaker/joiner and, having worked in that capacity in the building industry, he then worked as a builder (although not a registered builder) doing 'untold work of restoration and repairs'.

40 The appellant moved to Margaret River in 2004, when he bought Bridgefield, which is a heritage listed building made of timber. The building had been in constant need of repair and attention, and it had been 'a love affair for [the appellant] to use all his skills to develop the place as it is'. It was suggested he had made a positive contribution to the area beyond maintaining the house. His counsel tendered a letter, published in the Augusta-Margaret River Mail newspaper on 25 March 2015, in which the correspondent expressed appreciation for the appellant's contribution of artwork to the Margaret River streetscape.

41 The appellant owns the property behind Bridgefield, which he developed into short-term accommodation. He also owns the property across the road. All the properties are heavily mortgaged.

42 It was submitted on behalf of the appellant that he is 'no Mr Big', and that his 'whole life and interest is the development [and] running of this restaurant and accommodation complex'. Although his counsel initially suggested the appellant was a 'small operator', he abandoned that description when the magistrate questioned whether it was apt, given his assets. Nevertheless, counsel submitted that the appellant's means were modest, which prompted the magistrate to note that he did not have any information about the appellant's financial circumstances. He pointed out that if it was being submitted that the appellant's financial circumstances should have an impact on the quantum of any fine imposed, what was 'modest' had not been quantified.[24]

43 The appellant's counsel eventually informed the magistrate that the appellant had a mortgage debt of $4,910,000, which was in respect of three properties, and he owed $150,000 to his brotherinlaw. He had an interest in nine properties and annual revenue of approximately $1.1 million from the various properties that offered accommodation. The magistrate was informed that the appellant had annual costs of $650,000 in respect of staff and annual mortgage costs of approximately $350,000. He was told that what was left over was spent on maintaining and developing the properties.

44 The appellant's explanation for the offending is outlined above, under 'Facts Presented to the Magistrate'. His counsel noted that the appellant spoke to the Shire on 30 September 2014, so there was no attempt by him to hide what he was doing. He submitted that this 'was not building by subterfuge'. However, counsel accepted that the discussion with the Shire officers had only been in relation to maintenance work, that he knew that any further work would have to be approved, and that the further work with which he proceeded went beyond the scope of what was discussed with the Building Services Coordinator at the Shire. However, the appropriate approvals were eventually given, and the work that had been done was approved. Further, the appellant had obtained a building permit, although the work which had yet to be done was to be carried out by a registered builder.

45 It was submitted on behalf of the appellant that the offending should be regarded as being at the lower end of the scale, because the appellant's motivation originally was to strengthen the weakness in the floor and he 'took it over from there'. Although counsel submitted that there was no great benefit to the appellant, he accepted that the commercial benefit was something that would flow in the future. He said the appellant did not deny that he had told the Shire officers that he wanted to 'get cracking', but that was in the context of discussing the internal works. I have dealt with that submission earlier in these reasons.

46 It was submitted on behalf of the appellant that his plea of guilty was a mitigating factor. The lateness of the plea was explained on the basis that the appellant's legal advisers had considered there was 'some ambiguity as to the law'[25] in respect of whether retrospective approval rendered lawful any work that had previously been done without approval, so as to negate criminal responsibility. It was only after the matter was listed for trial that the legal advisers concluded that the issue had been resolved in previous cases, and that the appellant continued to be criminally responsible for past acts, notwithstanding the retrospective approval. The appellant had not sought a further adjournment to obtain clarification of the legal issue, because, the matter having been adjourned on a prior occasion, the Shire's counsel had indicated they would oppose a further adjournment.[26] The appellant chose to enter pleas of not guilty until he had proper legal advice on the issue. Counsel submitted that when the appellant received that advice, the Shire was informed as quickly as possible that he would change his pleas.[27] As I stated earlier, the Shire was advised six days before the day on which the trial was due to commence.

47 The provisions of s 164(3) of the PDA would appear to be clear in allowing enforcement proceedings to be taken for development done without approval, notwithstanding the granting of retrospective approval. The appellant's counsel at first instance did not identify which authorities gave rise to the uncertainty or which were considered ultimately to resolve the issue. In any event, as will appear below, the magistrate allowed a reduction of the penalty for each offence for the plea of guilty, and no issue was taken on appeal on behalf of the appellant with the quantum of that reduction.

48 The magistrate gave detailed reasons for the penalties he imposed.

49 His Honour noted that in March 2011 the maximum penalty for the planning offence had been increased in respect of individuals from $50,000 to $200,000. He identified correctly that the court must have some regard to that increase in penalty in order to give effect to parliament's intention.

50 His Honour considered it significant that the building on which the development took place was heritage listed and of some historic value. He accepted that the appellant honoured and met his obligations under 'that legislation',[28] but observed that this was also due no doubt to the fact that maintaining the property's heritage value made it an attraction for the purposes of his business.

51 The magistrate did not accept the 'bold assertion' that the appellant believed he was not required to obtain planning approval or a building licence in relation to internal alterations of the building. His Honour considered that the assertion stretched credulity, given the appellant's background, in particular his experience within the building industry as a tradesperson of many years' experience. However, it seems his Honour did accept that initially the appellant's intention was to carry out maintenance, by way of re-stumping, after customers had complained about the floor. His Honour noted, as a relevant factor, the importance of the presentation of the building in which the appellant's business was conducted. Although his Honour did not have information about whether the stumps could be replaced without approval, he considered that that would amount to maintenance work and probably would not have required approval. However, he found that the appellant 'went too far and beyond' what was self-evidently required for the purposes of restumping.[29]

52 His Honour found that the work that was undertaken by the appellant during the various inspections that came to the attention of the Shire was 'more substantial in every respect and no doubt involved an expansion of the facilities that [were] being provided to various patrons from [these] particular premises, and to that extent it was, in every respect, an expansion of his business, as was then existing prior to these proposed alterations.'[30]

53 His Honour accepted the submission made by the prosecution that when the Shire officers attended the premises on 16 January 2015 and discussed the matter with the appellant, he knew that he needed a building permit and planning approval for the work he undertook beyond maintenance. His Honour had regard to the appellant's experience in the building industry and his knowledge of his obligations under the heritage legislation. His Honour characterised the appellant's motivation for the offence as follows: [31]

More importantly, he simply wanted to undertake the work sooner rather than later and not be inconvenienced by necessarily making the appropriate applications for the respective approval, be it building and/or planning. And as he would suggest and as indicated [to] the Shire officers, just wanted to get cracking.

But that, of course, is of concern because it impacts upon precisely that mischief that the Act seeks to discourage.

54 The magistrate then referred to observations of Hasluck J in Swan Bay Holdings Proprietary Ltd v City of Cockburn,[32] in which his Honour discussed the purpose of planning controls and the need for significant penalties in order to deter infringements, and the limited weight that could be given to retrospective approval as a mitigating factor in that case.

55 The magistrate concluded that there was a significant and important need for deterrence, given the purpose of the approval process, which was for the benefit of the whole community.

56 His Honour was satisfied that the appellant was 'acutely aware of the processes, perhaps not to their particular, but certainly the obligation, as is evidenced by his understandings (sic) and his prior contact with the officers to discuss the need to deal with the re-stumping'.[33]

57 His Honour noted that the work with which the appellant then proceeded was discovered on 18 November 2014, and the appellant lodged an application for planning approval shortly thereafter. He concluded from the fact that the appellant lodged the application that his obligations had been made known to him by that time. Yet, the appellant continued with the work after lodging the application, until he was served with the notice directing him to stop the work and not recommence until the requirements of the PDA had been met.

58 The magistrate gave the appellant credit for the fact that he did then cease all work and did not recommence until after the planning approval and building permit were granted. It would appear that his Honour took into account the appellant's compliance with the stop work notice, and his cooperation from that point onwards, as mitigating factors.

59 Nevertheless, his Honour was satisfied that there was a degree of flagrant behaviour by the appellant in making the conscious decision to proceed with the building work as expeditiously as he could, to avoid the inconvenience of delay in the planning process, when he knew and understood his obligations. His Honour considered that this raised the issue of specific deterrence as a relevant sentencing factor in this case. In his Honour's view, it was necessary that someone in the appellant's position, who had extensive business interests and whom he regarded as an 'aggressive business person' in terms of his investments, should be deterred from conducting his business in a way that sought to avoid strict compliance with planning obligations.

60 His Honour took into account four mitigating factors.

61 The first, which his Honour regarded as 'a powerful mitigating factor', was the fact that the appellant was a first offender.

62 Secondly, his Honour took into account the fact that the appellant eventually sought the necessary approvals, including retrospective approval for work that had been done, and the approvals were granted. As I have already noted, it also appears his Honour took into account the fact that the appellant complied with the stop-work notice and co-operated after that, although he was under a legal obligation to do so in any event.

63 Thirdly, his Honour thought it was not unreasonable to say that, apart from the advantage that the appellant gained by having his desire to expand his business met sooner rather than later, 'no demonstrated commercial value' had been achieved by the appellant at the time that he came to be sentenced. Although it might be said that he had achieved some 'advanced construction', that was 'very much depreciated by reason of his compliance with the stop-work order'.[34]

64 Finally, his Honour took into account as a mitigating factor the appellant's plea of guilty. Although he considered that the usual utilitarian benefits of a plea of guilty at the earliest opportunity were largely lost, he was of the view that the impost on the Shire could be accommodated to some extent in the award of costs to the Shire.

65 Therefore, while the plea of guilty was entered after the matter had been listed for trial, his Honour allowed a 15% discount of the penalty for the plea of guilty. In arriving at that figure, his Honour appears to have had regard to s 9AA(4) of the Sentencing Act 1995 (WA), which in fact had no application to this case.[35] His Honour said: [36]

So, in my respectful view, the accused is not entitled to the full benefit as that contemplated under s 9AA of the Sentencing Act of a maximum mitigatory impact of an early plea of guilty of 25 per cent.

66 It is not clear, in my opinion, whether his Honour considered that s 9AA limited the extent of the reduction he could make for the plea of guilty to 25% (which would have been an error, as that limitation applies only to sentences of imprisonment), or whether he regarded 25% as a nonlimiting benchmark for the reduction that would be appropriate for a plea of guilty entered at the earliest opportunity. In any event, the reference to 25% was of no consequence, because the appellant does not take issue with the adequacy of the discount of 15% for the plea of guilty.

67 His Honour allowed a further 10% discount for the fact that the appellant was a first offender. It is apparent that his Honour then allowed a further discount for other mitigating factors, which his Honour summarised as follows:[37]

... The retrospective approval as being of itself of some mitigating effect, his cooperation, of course, of itself is a mitigating effect and, importantly, so, too, is his compliance in all the circumstances of preserving as best he can the historic value of these particular premises.

68 While his Honour did not quantify the discount for those additional mitigating factors, it is tolerably clear from the final result that his Honour allowed a discount of 12.5% for those matters. That is arrived at by deducting 25% (for the plea of guilty and the appellant being a first offender) from the total discount allowed by his Honour. The total discount can be calculated by having regard to what his Honour indicated to be the 'commencing point' in respect of the planning offence and the penalty his Honour ultimately imposed.

69 For reasons that I will elaborate upon when dealing with Ground 1 of the appeal, it appears to me that his Honour's starting point in respect of the planning offence was a fine of $80,000. Although he did not specifically refer to the planning offence at that point in his remarks, he referred to the relativity of that starting point to the maximum penalty of $200,000, which is the maximum penalty for the planning offence. The penalty that his Honour ultimately imposed in respect of the planning offence, 'mindful of those mitigatory factors', was a fine of $50,000. It is apparent, therefore, that the total discount allowed by the magistrate in respect of the fine for the planning offence was 37.5%.

70 In respect of the building offence, his Honour imposed a fine of $10,000, 'mindful of the same and similar considerations'. The latter qualification suggests that, although His Honour did not specify a starting point in respect of the penalty for the building offence, he applied the same discounts that he applied in respect of the planning offence.

71 The relevant principles on the hearing of an appeal of this kind were outlined conveniently by Hasluck J in Swan Bay Holdings Proprietary Ltd v City of Cockburn.[38] It is sufficient for me at this stage to note the following.

72 By s 8 of the Criminal Appeals Act an appeal may be brought in the Supreme Court against a sentence imposed by a magistrate on one or more of the following grounds, namely that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice. By s 14 the Supreme Court may, among other things, dismiss or allow the appeal, and may set aside the sentence and substitute a sentence that should have been imposed. Section 14(2) provides that even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

73 Section 39(1) provides that the appeal court must decide the appeal on the evidence and material that were before the lower court.[39]

74 I outlined the grounds of appeal in the introductory section of these reasons. Grounds 1 and 2 contain lengthy particulars. For convenience, the grounds of appeal are reproduced in the Appendix to these reasons.

Ground 1: Manifest excess Principles governing this ground of appeal

75 The principles governing an appeal against sentence are well established. An appellate court can only interfere with the exercise of sentencing discretion if the appellant demonstrates that the sentencing judge or magistrate erred in exercising that discretion.[40] Such error can be express or implied, but, it is not for the appellate court to interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive, unless satisfied that a different sentence should have been imposed due to the demonstrated error.[41]

76 A claim that a sentence is manifestly excessive rests on implied error. It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[42] The following formulation of the test by E M Heenan J in Goddard v City of Stirling[43] is apt for present purposes: [44]

It is well-established that if there is such a manifest disproportion between a penalty imposed and any penalty which might reasonably be regarded as being imposed in the circumstances, then that disproportion of itself constitutes error and may also connote some undisclosed or unmentioned error in the course of reasoning ...

77 It is necessary to review the sentence having regard to the maximum penalty available, the standards of sentencing customarily observed in relation to offences of this character, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, the personal circumstances and antecedents of the offender, and all aggravating and mitigating circumstances.[45]

78 The appellant accepts that a 'significant fine is appropriate' in the circumstances of this case,[46] but asserts that the fine of $50,000 for the planning offence is manifestly excessive having regard to the relevant sentencing factors and the circumstances of the case as outlined in the amended grounds of appeal. In particular, it was submitted on his behalf that his offending was at the lower end of the scale of seriousness, that there was a 'very low number' of aggravating factors compared to matters in mitigation, and that the penalty imposed failed to reflect adequately the appellant's financial circumstances.

79 The appellant's written submissions appeared to allege specific error, namely that a number of mitigating factors 'were not taken into account at all in sentencing'.[47] Such an argument is inapt on a ground that involves implied error.[48] In any event, the submission is without substance when one has regard to the magistrate's sentencing remarks, as outlined above. His Honour took into account all of the mitigating factors relied on by the appellant, which are identified below. On the appeal, the gravamen of the appellant's argument was that the penalty for the planning offence reveals 'an overly restrictive account of the significant mitigating factors' compared to aggravating factors, resulting in implied error.[49] It might be thought that what was being alleged is a failure by the magistrate to give sufficient weight to the mitigating factors, which again would be inapt.[50] However, in the context of this ground, the essence of the submission concerning mitigating factors is that they inform the seriousness of the offending and the appellant's personal circumstances, and when those matters are weighed with the other relevant sentencing considerations, the sentence was 'too high'.

80 The significant mitigating factors were said to be:

1. the appellant's cooperation with the Shire, in that he complied with the direction to stop work;
2. the fact the appellant applied for and received retrospective approval;
3. the appellant's motivation to commence the works was based on concerns about the need for maintenance;
4. that there was a lack of economic benefit derived from the works; and
5. that, in carrying out the unauthorised works, there was no subterfuge or deceit.

81 The appellant submitted that the only aggravating factors were the 'degree of flagrant behaviour' and the appellant's delay in accepting culpability.[51] I note that the latter is not an aggravating factor, but it tends to diminish the mitigating effect of the appellant's plea of guilty

82 The appellant placed significance on the starting point of $80,000, which the magistrate considered to be the appropriate penalty before reduction for mitigating factors. The appellant noted this was 40% of the maximum penalty. He then purported to compare that to the percentage of the maximum penalty imposed in other comparable cases involving contraventions of the PDA, arguing that, when one has regard to the comparative scale of building development in the present case, the offending 'falls well below 40[%] of the maximum [penalty]'.[52] With respect, the approach taken by the appellant was flawed, because it compared a starting point in this case with final outcomes in other cases. The appeal in the present case is (and can only be) in relation to the final outcome. The allegation of manifest excess relates to that outcome and must be judged by having regard to all relevant considerations, including the reduction of sentence afforded by the magistrate.

83 Further in relation to comparable cases, the appellant's counsel submitted during the appeal hearing that, while the need for general and personal deterrence was accepted by the appellant, the level of fines which had been regarded as apt to achieve such deterrence in other cases had been 'almost universally lower' than was applied in this case.[53] He submitted in effect that the cases where more significant penalties were imposed involved corporations or offending of a much more significant kind. In summary, he submitted that a smaller fine would still give effect to both general and specific deterrence in the present case.

84 In the course of arguing that the penalty for the planning offence was manifestly excessive, the appellant's counsel referred to the total effective penalty of $60,000, which includes the fine for the building offence, and submitted that it would 'have a large impact' on the appellant, having regard to his financial circumstances. The respondent has submitted that, if the appellant's argument in respect of Ground 1 relies on a proposition that the fine for the planning offence is manifestly excessive because the total effective penalty breaches the totality principle, that should have been the subject of a specific ground or a specified particular of Ground 1, and the appellant should be precluded from relying on the proposition because it is not raised by the amended grounds of appeal. I agree. The grounds of appeal were amended during the hearing, and the appellant did not seek to rely on a breach of the totality principle in the amended grounds.

85 However, as I have understood the appellant's argument about the impact of the penalty, it goes to the appellant's personal circumstances, in particular his financial circumstances, as a factor that should have mitigated the penalty for the planning offence further. In other words, the appellant's capacity to pay a fine of the magnitude that was imposed is a relevant consideration in determining whether the penalty is manifestly excessive,[54] and the imposition of the fine for the building offence would be expected to have an impact on that capacity. I consider that the imposition of the fine for the building offence is relevant to Ground 1 in that way.

86 The respondent submitted that, when one has regard to all of the circumstances of this case, the sentences imposed in a number of other cases, and the increase in the penalty since 2011, while the fine imposed for the planning offence might be regarded as being at the higher end of sentences imposed for such offending, it was within the sound exercise of the magistrate's sentencing discretion and, therefore, cannot be said to be manifestly excessive. Even if a smaller penalty would have been 'preferred' by the appellate court,[55] that is not a sufficient basis for disturbing the penalty imposed by the magistrate.

87 The respondent submitted that there were three factors that weighed very heavily against the appellant and justified the penalty imposed, namely the flagrant nature of his offending, the need for personal deterrence and the need for general deterrence.

(i) General principles governing sentencing for planning offences

88 The purpose of planning controls and the appropriate approach to their enforcement were identified by Hasluck J in Swan Bay Holdings Proprietary Ltd v City of Cockburn as follows: [56]

Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also upon a pervasive culture of general observance and respect for the underlying communal purpose. This requires that breaches of the law be underpinned by significant penalties in order to deter infringements.

89 As his Honour also noted in that case, the need for such penalties exists even when the unauthorised development may be thought to be compatible with the zoning and approval is given retrospectively, otherwise planning approvals would be reduced to the level of a mere formality.[57] As I indicated earlier, the magistrate in the present case had regard to the principles outlined by Hasluck J in Swan Bay Holdings.

90 In cases where there is a commercial motive for the breach of planning controls, the need for both personal and general deterrence is particularly marked. As Murray J said in Able Lott Holdings Pty Ltd v City of Fremantle[58] (Able Lott Holdings (1)), referring to the magistrate's remarks in that case concerning the need for deterrence: [59]

It was important in that context that the penalties should be commensurate with the seriousness of the breaches and should not be of an order which, in the judgement of the court, the appellant might regard as an unfortunate, but acceptable, operating expense.

91 After adopting what Hasluck J said in Swan Bay Holdings concerning the purpose of planning controls, his Honour confirmed that, in the case he was dealing with, deterrent penalties were required, 'and the level of fines had to be such, within the legislative framework, as to make the offending behaviour commercially unattractive'.[60] In my opinion, that statement reflects a principle of general application when there has been a commercial imperative behind a breach of the planning laws.

92 As I noted above,[61] the maximum penalty for the planning offence under s 23 of the PDA was a fine of $200,000 and, in the case of a continuing offence, a further fine of $25,000 for each day during which the offence continued.[62]

93 The section was amended by the Heritage and Planning Legislation Amendment Act 2011 (WA) which increased the maximum penalty from $50,000 to $200,000 and the further daily penalty from $5,000 to $25,000.

94 The policy underpinning the Heritage and Planning Legislation Amendment Act 2011 was explained by the Minister for Heritage in his second reading speech:[63]

Our state heritage legislation is now outdated. In particular, the fines that can be imposed for damaging or demolishing heritage places have not kept up with the rapid increases in land prices. The Heritage of Western Australia Act provides that a maximum fine of only $5,000 applies for damaging or despoiling a place listed in the Register of Heritage Places. Unauthorised development or demolition is subject to a maximum fine of $50,000 under the Planning and Development Act. These fines are too low compared with the market value of an empty block.

...

Our current fines are hardly a deterrent. Indeed, an owner could see fines as merely a cost of doing business, and a rather small cost at that.

...

A conservation order can be put in place by the minister when he or she believes it is necessary or desirable to provide special protection under section 59. These provisions rely on the minister being made aware that special protection is required in advance of any damage being done. Without a conservation order, the penalty for damaging or despoiling a place listed in the Register of Heritage Places is a maximum fine of $5,000. In addition, a person who has not obtained the necessary planning approvals from a local council is liable to a maximum fine of $50,000 under the Planning and Development Act 2005. These fines are inconsequential and send the wrong message.

95 In JKL v The State of Western Australia[64], Murphy JA explained the proper regard to be given to an increase in the maximum penalty for an offence:[65]

An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31]; Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [133]; Sentencing Act 1995 (WA), s 6(2)(a). It requires the court to regard offences of that kind more seriously in the future: The State of Western Australia v BLM [2009] WASCA 88; (2009) 40 WAR 414 [35]. It is the duty of the court to give effect to the policy behind the change: Heferen v The Queen [1999] WASCA 81; (1999) 106 A Crim R 89 at [35].

96 The appellant submitted that the 2011 increase in penalty allows for 'greater latitude' in sentencing for planning offences, but that the increase should be regarded as being most relevant to sentencing for offences at the 'high end of wrongdoing',[66] by removing a barrier to imposing adequately deterrent sentences in the most serious cases. In my opinion, the submission is contrary to the statement of principle in JKL and must be rejected. There was no reference in that case to any such limitation upon the impact of an increase in penalty on sentencing for particular offences.

97 The general sentencing principles require that the sentence for a particular offence bear a relationship to the maximum penalty that reflects the place the particular offence occupies on the scale of seriousness for offences of that kind, the maximum penalty of course being reserved for the worst category of cases for offences of that kind. If the maximum is increased, it is to be expected that the penalty would increase across the board for offences of that kind to reflect the relative seriousness of each particular offence. In accordance with the principles explained by Murphy JA in JKL, it is 'offences of that kind' that are to be regarded more seriously after an increase in the maximum penalty, not just offences at the high end of wrongdoing.

98 It is also evident from the second reading speech concerning the 2011 increase in penalty that the Minister was referring to fines across the board for offences under the PDA as being 'too low', 'inconsequential' and sending the wrong message.

99 There was an expectation in the present case, therefore, that the penalty imposed for the planning offence would reflect the intention of parliament that the offence be regarded as more serious than it might have been before the 2011 amendment, and that it be a deterrent penalty that would not be seen merely as a cost of doing business. In my opinion, fines imposed before the 2011 amendment for similar offending will no longer be suitable comparators unless allowance is made for the expectation of a heavier penalty for offending of a particular seriousness.

100 The factual basis on which the magistrate sentenced the appellant is set out in detail above. Apart from the challenge made in Ground 2, the factual findings are not challenged by the appellant. Contrary to the appellant's submissions, the facts supported a conclusion that the offending was of a very serious kind.

101 While the appellant commenced with the intention of repairing the restaurant floor by replacing the stumps, he quickly turned his mind and efforts to building and development of a much more substantial kind than had been necessary. It involved a significant expansion of his restaurant business and the facilities to be provided to his patrons. His motivation was commercial gain, even if the fruits of the development might not have been realised for some time.

102 He was experienced in the building industry and knew that he needed a building permit and planning approval for work he undertook beyond maintenance, a fact that was admitted on his behalf on the appeal.[67] On his own admission, he had also been told by someone at the Shire in September 2014 that he needed to make an application for certification or approval. He was also acutely aware of the heritage significance of the building and his obligations in that regard. He proceeded without approval in flagrant breach of his obligations. He had decided to 'get cracking' because he thought the approval process would take too long, and he did not want to be inconvenienced by having to wait. Even when he did lodge an application for planning approval in December 2014, he decided to continue with the building work while the application was under consideration.

103 The work that was done was significant, and further substantial work was planned. This was conceded by the appellant,[68] although his counsel sought to distinguish the scope of the work, in terms of its extent and value,[69] from the demolition of the façade of the old Railway Hotel in Perth in the 1990s, where, as counsel put it, 'clearly a decision was made...by the developer that any financial penalty was peanuts.'[70] With respect, this was not a helpful comparison. First, there was no evidence before the court in this case about the monetary value of the development. Secondly, the Railway Hotel case might be regarded as a worst case category, or close to it. The appellant was not sentenced on that basis.

104 The scope of the proposed development in this case, and its value to the appellant, needs to be assessed by having regard to the potential expansion of his business as well as the improvement to the value of the property. It was significant.

105 Not all of the planned development was acceptable to the Shire, and some of it raised heritage concerns. The heritage listing meant there was an even more acute need to wait for approval to take into account heritage advice. The appellant stopped the work only when issued with a notice to do so.

106 The fact that the building was heritage listed was an aggravating factor. It elevated the importance of personal and general deterrence and the need for punishment.[71]

(iv) Mitigating factors relied on in the appeal

107 As I noted above, the appellant relies on five mitigating factors which he says are significant in reducing the seriousness of the offence and disclosing the manifest excessiveness of the sentence for the planning offence.

108 It was submitted that he was motivated initially to carry out maintenance work because of concerns about the condition of the restaurant floor, and that he just got 'carried away'.[72] That was accepted by the magistrate, and it may be further accepted, as the appellant submitted, that the offending was not premeditated, in the sense that he did not commence the work with the intention of making significant alterations and expanding his business. However, by 18 November 2014 a substantial level of work had been done beyond what was necessary for maintenance.[73] Further, getting 'carried away' did not mean that he acted in some impulsive manner. It is obvious that the nature and extent of the work done required some planning and investment of time and money, with a view to gaining a commercial advantage in the longer term. In my opinion, the initial motivation was not a factor that could reduce the sentence in any significant way.

109 It was submitted on behalf of the appellant that he did not carry out the building work (presumably before it became known to the Shire) in a manner that involved subterfuge or deceit. In particular, he had gone to the Shire offices in September 2014 to enquire about restumping the restaurant floor and excavating below. However, it is obvious that he did not inform the Shire of his intention to carry out (or the fact he was carrying out) much more extensive building work once he decided to do so. Further, it is not apparent that the fact the additional work was being carried out would have been obvious to anyone outside the building.

110 If the appellant was acting in contravention of his obligations openly, that might suggest an attitude of contempt towards the Shire and the planning laws, which would not assist the appellant's case. However, the unchallenged findings of the magistrate do not support the proposition that he was transparent in carrying out the work.

111 It was submitted on behalf of the appellant that there was a lack of economic benefit derived from the works, and that should be regarded as a mitigating factor. While it may be accepted that at the time the accused was charged with the offence, he had not derived any economic benefit from the work done without approval, this was counterbalanced by the magistrate's finding that the appellant's motive was longer term commercial gain, which was self-evident.

112 It was submitted on behalf of the appellant that he cooperated with the Shire by complying with the direction to stop work, and that was a significant mitigating factor. It was, of course, to his credit that the appellant complied. There have been cases where offenders have failed to comply with such a direction. However, the value of such compliance should not be overestimated as a mitigating factor. It was the appellant's obligation to comply, and there may have been further detrimental consequences if he had not complied. Indeed, non-compliance would properly be regarded as an aggravating factor. In any event, the appellant's compliance with the notice was taken into account by the magistrate, and it is not readily apparent that either alone or in combination with other factors it would justify a lesser penalty.

113 As I noted when dealing with the magistrate's remarks, the appellant's cooperation was further taken into account, in a significant manner, in the reduction for his plea of guilty. The plea was entered relatively late. His Honour nevertheless reduced the penalty by 15% for the plea. As I noted earlier, the appellant's counsel at first instance sought to explain the delay in the entering of the plea on the basis that there was believed to be some ambiguity in relation to the legal effect of retrospective approval, in particular whether enforcement proceedings could still be brought. The explanation did not render the plea an early plea. The magistrate was entitled to take the lateness of the plea into account, and the appellant did not take issue with that proposition on appeal. Nor was it submitted by the appellant that the reduction of 15% for the plea of guilty was inadequate.[74]

114 It was submitted on behalf of the appellant that the fact he applied for and received retrospective approval was a further significant mitigating factor.

115 As I pointed out in setting out the general principles governing sentencing for planning offences, Hasluck J identified in Swan Bay Holdings Proprietary Ltd v City of Cockburn the need for deterrent penalties even when retrospective approval has been given. His Honour observed that in certain circumstances retrospective approval might be of limited value as a mitigating factor, especially in the case of a flagrant breach which could result in the local authority being deprived of the opportunity to impose suitable protective conditions. While the Shire was not deprived in that way in this case, the breach was nevertheless found, quite properly, to have been flagrant.

116 Able Lott Holdings Pty Ltd v City of Fremantle[75] (Able Lott Holdings (2)) was a case in which it was held that retrospective approval was not a mitigating factor at all. In that case, however, there had been a failure to comply with some of the conditions of the 'subsequent conditional approval' that had been given.

117 The magistrate in this case accepted that the retrospective approval was a mitigating factor, and he took it into account with other mitigating factors to discount the penalty he would have imposed before taking into account mitigating factors by a further 12.5%.

(v) Mitigating factors - The appellant's personal circumstances

118 The appellant's personal circumstances are set out in detail above under 'Plea in mitigation'.

119 On the appeal, the matter on which counsel placed particular significance was the appellant's financial circumstances. It was accepted on his behalf that any fine imposed for the offending of which he was convicted would need to be such that he would 'feel it'. However, it was submitted that the 'raw figures' were indicative of a person upon whom a significantly lower fine would have had a significant impact, both in terms of punishment and deterrence,[76] and that the fine of $50,000 would have a disproportionate punitive impact upon him.

120 The appellant's means to pay a fine and the extent to which payment of the fine will burden the appellant are relevant considerations to the quantum that would be a just punishment in this case.[77]

121 The information provided to the magistrate about the appellant's financial circumstances is set out at [43] above. The respondent submitted that a great deal of scepticism should attach to the assertions made about the appellant's financial position, given the significant number of properties he owns. It was submitted that it was incumbent on the appellant to provide credible evidence of his financial position, which he failed to do. He carried the onus on the balance of probabilities to establish what was relied on as a mitigating factor.

122 Ordinarily, one would expect that evidence such as financial statements would be presented to a magistrate to support a submission suggesting the offender would have difficulty paying a fine of a particular magnitude.[78] That was not done in this case, but, as far as I can ascertain, the magistrate was prepared to rely on the figures that were provided to him. In those circumstances, I should accept that the information was correct. However, that said nothing about the likely financial impact on the appellant of the penalty imposed by the magistrate.

123 It was not clear whether the $1,100,000 yearly income from 'the different accommodation houses' was from all of the nine properties that he owned. I note that there was no mention of income from the restaurant. In any event, as the respondent submitted, if as was stated at first instance the appellant's mortgage debt of $4,910,000 was 80% of the value of the properties he owned, the total value of the properties was approximately $6.3 million, which left him with equity worth approximately $1.22 million. In those circumstances, the appellant's financial means could hardly be called modest. It has not been demonstrated that the potential financial impact on the appellant of a fine of $50,000 would be disproportionately harsh, such that his personal circumstances warrant a significant reduction of the penalty that may otherwise be justified to achieve the sentencing objectives of punishment, general deterrence and personal deterrence. Whether the penalty is otherwise justified depends, of course, on the seriousness of the offence and the other sentencing considerations I have already discussed.

124 The next step in determining whether the penalty is manifestly excessive is a consideration of the standards of sentencing customarily imposed for such offending.

(vi) Standards of sentences customarily observed

125 In Goddard v City of Stirling,[79] EM Heenan J noted that 'it is necessary to bear in mind constantly that sentencing is a matter of discretion, that no case is exactly similar', but that it is desirable that 'there be a general proportionality and consistency in sentencing for offences of like kind.' The object of comparison with other cases is to ensure broad consistency.[80]

126 There have been a number of appeals to this Court in relation to sentences for s 218 planning offences, both before and after the amendment increasing the maximum penalty.[81] A number of the decisions in those cases have reviewed prior cases with a view to ascertaining a range. Most recently a detailed review was undertaken of cases decided until 2015 by Pritchard J in Beydoun v City of Stirling.[82] What is clear from her Honour's review of the cases and from earlier reviews is that the identification of a range of penalties or a 'clear pattern' for offences under s 218 of the PDA is somewhat difficult because of the considerable disparity between the circumstances of planning offences, the impact on the overall sentence of a daily penalty when that is imposed, and the disparity between the penalty for individual and corporate offenders.[83] The appropriate penalty in any case will depend on the particular circumstances of the case, including the offender's personal circumstances.

127 In Able Lott Holdings (2), Pullin JA (Buss JA and Mazza JA agreeing) noted that the three cases referred to by counsel in that case for comparative purposes did not establish a range of sentences. His Honour went on to say: [84]

Even if those cases did suggest some range, the range does not then produce a maximum which displaces the statutory maximum. Each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The mere fact that a sentence is outside the range of other sentences imposed for similar offences does not necessarily establish that the exercise of discretion in the particular case miscarried.

128 It is also important to note a further limitation to comparative analyses. As there is no single correct sentence for a particular offence, having regard to the circumstances of offending and the offender's personal circumstances, the fact a sentence was held to be within range on an appeal does not mean the sentence should be regarded as the only appropriate sentence in those circumstances or as a benchmark.

129 In Paolucci v Town of Cambridge[85] Edelman J identified a number of reasons why it is difficult to ascertain a 'clear range of penalties' for planning offences. Apart from the vastly different circumstances in which the offences can occur, the matters included: [86]

1. The different periods over which the offending can occur and the increased penalty for longer periods which results from imposition of daily penalties; and
2. The date when the offences occurred and when the sentencing took place. The value of building work, and the effect of inflation, makes it more difficult to compare penalties imposed a decade ago, or sometimes longer.

130 His Honour noted, however, that there is a considerable difference between penalties which are imposed upon corporate offenders and individual offenders, which is a natural reflection of s 40(5) of the Sentencing Act which makes a body corporate liable to a fine that is five times the maximum that could be imposed on a natural person convicted of the offence.[87] In the context of planning offences, the distinction also reflects public policy considerations, in particular the need to ensure corporate responsibility, recognising, as a general rule, that large scale development will usually be undertaken by corporations with significantly greater asset and revenue bases than individuals, with a view to making large profits. That is not to say that considerations of that kind are irrelevant in the case of an individual, particularly where the person has assets worth several million dollars and is also motivated by profit, but the penalty imposed on an individual will always be limited by the lesser maximum penalty.

131 Another complicating factor in making comparisons with other cases is that sometimes both an individual and a company in which he or she may have an interest have been prosecuted for the same offence. Invariably, a heavier penalty will have been imposed on the company, but it may not be clear whether the penalty imposed on the individual has been affected by the fact that the corporate entity has also been prosecuted and punished.

132 The variety of circumstances in which planning offences are committed includes:

133 In Swan Bay Holdings Proprietary Ltd v City of Cockburn,[88] Hasluck J observed that, in the context of a commercial development, the cases concerning unauthorised residential developments have to be viewed with caution.

134 Another distinction that makes comparison difficult is between breaches involving unapproved use of land and those involving demolition or construction of buildings. The respondent submitted that, generally, construction cases should be regarded as more serious because unapproved use can cease immediately and the mischief is brought to an end, whereas with construction the mischief might not be capable of being undone so readily. On the other hand, the appellant submitted that the relative seriousness will depend on the circumstances. Unapproved construction may nevertheless be within the zoning laws. If such construction is approved retrospectively, the mischief was in the disregard of the law and the potential for risk arising from unapproved building work, although that risk may not have materialised. In contrast, there may be land use (that does not involve construction) that may pose a danger to the health or safety of the community, or may involve a serious breach of public policy (for instance where a residential property is used as a brothel).

135 As I noted earlier, retrospective approval, including where there was a reasonable expectation of approval, does not detract from the need for general deterrence in the case of construction work that occurs in breach of planning controls, otherwise approval may be regarded as a mere formality and penalties an unfortunate but acceptable operating expense. Nevertheless, I accept that breaches involving construction will not always be more serious than those involving use of land. It will indeed depend on the circumstances of each case. It remains the case, however, that comparison between cases that involve different forms of breach may not be helpful in determining whether the penalty imposed in a particular case is manifestly excessive.

136 In my opinion, there are two cases that are of particular assistance in determining whether the fine in this case was manifestly excessive. The first is Goddard v City of Stirling, notwithstanding that it involved a residential development and the maximum penalty was pre-amendment. The other, notwithstanding the fact that the offender was a body corporate, is Able Lott Holdings Pty Ltd v City of Fremantle, because it involved a building that had heritage value, and there are some similarities in the circumstances in which the work commenced.

137 In Goddard v City of Stirling (2009),[89] 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 cooperated 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 and personal advantage, perhaps not of direct commercial result but potentially in the long run.'[90] EM Heenan J was satisfied that the penalty was 'unusually high', but it was evident that it contained a substantial deterrent component.[91] His Honour said he would have expected a penalty in the range of $20,000 to $25,000 'as being more consistent with the limited pattern which emerges from an examination of the authorities', but he did not consider that the fact the penalty imposed was 'slightly higher than that' showed 'such a degree of disproportion as to constitute an error justifying alteration of the penalty'.[92]

138 In Goddard, as in the present case, once the non-compliance had been detected and the local authority had intervened, work ceased immediately, and the offender engaged in discussions with the local authority to obtain approval. However, in Goddard, the magistrate had proceeded on the basis that the council was presented with a fait accompli, in that 'it is much harder to get these buildings down once they are up without approval'[93] and some of the construction that had occurred did not comply with what the local authority was prepared to approve, which had created some difficulty, there being a prospect that some changes would have to be made.

139 There are relevant distinguishing features between Goddard and the present case. The first is that the maximum penalty in Goddard was $50,000. As I have already said, allowance must be made for the increase of the maximum penalty to $200,000 in 2011. The following distinguishing features would also tend to suggest that the present case should be regarded as more serious:

1. The property in Goddard was a residential building, whereas in the present case the building was used for business purposes. While, as EM Heenan J noted, there was the potential for Mr Goddard to gain a commercial advantage in the long run (presumably by an increase in the value of his home), the present case involved an expansion of the appellant's business, and the motivation clearly was commercial, even if the benefits might not be realised immediately.
2. The building in the present case was a heritage-listed building, which carried with it added responsibility to ensure that any development met with approval and did not detract from the historical value of the property, which was a matter of public interest. The need for general deterrence could properly be regarded, therefore, as being of even greater significance than in Goddard. That should not be seen to detract from the seriousness of unapproved residential development, given the potential for an adverse impact on neighbouring properties, but it would defeat the purpose of heritage-listing if added significance was not given to that factor.

140 On the other hand, an aggravating factor in Goddard that is absent in the present case is that the application for approval was considered to be a fait accompli. In the present case it was conceded by the prosecutor that all of the work that was done was approved retrospectively and, in that regard, the application did not present a fait accompli. However, in my opinion, the significance of the distinction is somewhat diminished when one has regard to the broader circumstances. In Goddard, there remained the possibility that Mr Goddard would be required to make changes to the work that had been done. In the present case, the plans were not approved in their original form. Modification of the plans was required to accommodate heritage concerns. Although the modification did not affect the work that had already been done, the appellant had proceeded with the development without waiting for approval, even after he had lodged the application, and he ceased the construction work only when given the stop-work notice.

141 As in this case, the fine imposed in Goddard was after a plea of guilty and took into account the fact that the offender had no prior record.

142 When allowance is made for the increased maximum penalty, with the consequent need for the court to regard such offences more seriously and impose heavier penalties, and the additional aggravating factors in the present case, being the commercial motive and the potential risk to the heritage value of the property, the imposition of a fine of $50,000 in this case relative to $30,000 in Goddard does not disclose disproportionality of a magnitude that places the sentence imposed on the appellant outside the range of a sound sentencing discretion.

143 Both parties in this case compared the percentage of the maximum penalty represented by the fine imposed on the appellant with the percentage of the maximum penalty imposed in other cases, including Goddard. While comparison of sentences on the basis of the percentage of the maximum penalty is not determinative of whether a sentence is disproportionate to sentences commonly imposed for similar offending, it is a relevant consideration. That is because it reflects the relative seriousness of the offending by reference to the maximum penalty.

144 Obviously, comparison with other cases must make allowance for differences in the circumstances of the cases, including the personal circumstances of the offenders. However, it is noteworthy that the final penalty which was held not to be manifestly excessive in Goddard was 60% of the maximum applicable at that time. In the present case, while the commencement point was 40% of the maximum penalty of $200,000, the fine that was actually imposed was 25% of that maximum. This tends to confirm the conclusion that the fine imposed on the appellant was not outside the range of a sound sentencing discretion.

Able Lott Holdings Pty Ltd v City of Fremantle

145 In Able Lott Holdings Pty Ltd v City of Fremantle (2011), the offender was a corporation. It was convicted of an offence under s 218(a) of the PDA, an offence under s 374(1)(a) (now repealed) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) of building without a building licence, and an offence under s 401A(5) (now repealed) of that Act of allowing work to be done in contravention of a stop work notice. The offending occurred in 2007. The building was an old warehouse which was to be redeveloped into short-term accommodation. The local authority, the City of Fremantle, considered the façade to be of particular interest and that it was to be preserved in the course of any redevelopment. Planning approval had been sought and obtained some years before the redevelopment that was eventually undertaken. However, it had lapsed and an application for an extension of the approval was pending when the work was undertaken. A building licence had also been obtained, but that also had lapsed by the time the work started.

146 The work started in circumstances in which the structural integrity of the building was compromised as a result of unseasonal weather, and there was a need to stabilise limestone footings and a front wall if they were to be preserved. The company discovered that it had inadvertently allowed the building licence to expire. An urgent application was made for an extension of the licence, although work had proceeded for some two months before that. The application was refused on 13 February 2007 and a stop work notice was served. In contravention of that notice, work continued on the site for another six months.

147 At the time the offence was committed, the general penalty under s 223 of the PDA was $50,000 and $5,000 for each day during which the offence continued. However, as the offender was a body corporate, s 40(5) of the Sentencing Act made the offender liable to a fine five times the maximum that could be imposed on a natural person convicted of the offence. Thus the maximum penalty applicable was $250,000 and a daily penalty of $25,000. For the PDA offence, the company was fined $100,000 and a daily penalty of $500 over the period of 162 days (amounting to $81,000), resulting in a total penalty of $181,000.

148 The learned Magistrate viewed the offences as involving a brazen and deliberate attempt to circumvent limitations which applied to the company, 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 constituted serious offending, and that the sentences were not manifestly excessive.[94] An appeal against his Honour's decision was also dismissed.[95] As I noted earlier, the court considered that the fact the building was of heritage value meant the need for personal and general deterrence was of particular importance.

149 Obviously, the building development in that case was on a much larger scale than in the present case. The offender was a development company, and the magistrate was mindful that such companies can be transient and are driven by profit. He had noted, in particular, that the company had taken the course it did 'for its own commercial benefit and convenience and had tried to force its way through the red tape'.[96] Further, there was the aggravating factor that work continued in contravention of a stop work notice. However, the company was charged separately in respect of that offence and was fined $10,000 (the maximum being $25,000). Further, a daily penalty was imposed in respect of the planning offence for the period during which work continued. In addition, a daily penalty was also imposed in respect of the offence of building without a licence. Therefore, the aggravating factor was dealt with by way of additional penalties.

150 Although the work in Able Lott Holdings was on a larger scale and the company may not have had the same kind of investment in the property as the appellant did in Bridgewater, there were obvious similarities in the circumstances in which the work commenced. The magistrate in Able Lott Holdings accepted that '[s]ome of the deviations were ostensibly for safety and heritage preservation',[97] similar to the appellant's initial motivation to carry out necessary maintenance in this case. Further, the appellant's actions as found by the magistrate in the present case can also be described, as was the conduct of Able Lott Holdings, as an attempt to force his way through the red tape. I note that in Able Lott Holdings it was thought that the council's powers to require complete demolition if the work was not approved were likely to be curtailed because of the heritage status of the site, which was regarded to some extent as the offender having succeeded in presenting a fait accompli.[98] That was not the case here.

151 In Able Lott Holdings, planning approval had been sought and granted some four years earlier, and a building licence had been obtained. Both had lapsed, although, at least in respect of the licence, that was due to inadvertence, rather than a deliberate disregard of obligations. In the present case, although the appellant had made an enquiry with the Shire about the maintenance work, he did not seek planning approval for the more extensive development until after the Shire became aware of the work that had been done.

152 Although Able Lott Holdings was a corporate offender, and one would ordinarily have expected a heavier penalty to be imposed, the maximum penalty for the PDA offence for a body corporate at that time was $250,000, which in relative terms was close to the maximum penalty to which the appellant was liable in the present case. The fine imposed on Able Lott Holdings, before having regard to the daily penalties, was 40% of the maximum.

153 In my opinion, when one takes into account the similarities, but makes allowance for the differences to which I have referred between Able Lott Holdings and the present case, the comparison does not support the conclusion that the fine imposed on the appellant was outside the range of a sound sentencing discretion.

(a) Before the 2011 increase in penalty applied

154 In addition to Goddard, the appellant relied on the following cases, two involving individual offenders and the last involving a body corporate, all of which involved offences committed when the maximum penalty was $50,000 and a daily fine of $5,000 for an individual and $250,000 and a daily fine of $25,000 for a body corporate.

155 In Paolucci v Town of Cambridge (2013), a father (a builder) and his son, neither of whom had any prior convictions, were convicted after a plea of guilty of three offences, two under the Local Government (Miscellaneous Provisions) Act 2005 (WA) (alterations and extensions of a building without approval and without a building licence) and one under s 218 of the PDA (developing land for residential purposes without conforming to the provisions of the Residential Design Codes). I note that the maximum penalty for each of the offences was $50,000, and that the offence of making alterations and extensions without approval was probably the closer in kind to the planning offence in this case, rather than the PDA offence, which was concerned with non-compliance with Residential Design Codes. The offences involved the addition of a garage to a house owned by the son. A retaining wall had also been built, and during some of that work there had been no approval for the work, but it seems there was no offence in respect of that. Planning approval had been sought and appears to have been granted in stages, but the nature of the garage that was built did not comply with the approval given by the Council. However, retrospective approval was eventually given by the State Administrative Tribunal.

156 The offences in Paolucci were considered by the magistrate to have been premeditated and blatant, and in the case of non-compliance with the Residential Design Codes, was said to have involved intentional deception. The offending involved no immediate commercial gain (and none in any event to the father), but the son stood to make a commercial gain from the improvement to the house. The father was considered somewhat more culpable than his son. Both offenders were fined $35,000 for each offence plus daily penalties, resulting in a total penalty of $110,200 being imposed on each. On appeal, Edelman J set aside those fines both on the basis that the magistrate made errors of law and on the basis that the fines were manifestly excessive. In respect of the two offences which involved making alterations and an extension without approval and undertaking a development that did not conform with the Residential Design Code, his Honour imposed fines on the father of $6,000 plus a daily penalty of $60 per day (a combined total of $15,180) and $4,000 plus $50 per day (a combined total of $17,200) respectively. His Honour imposed fines on the son of $5000 plus $40 per day (a combined total of $11,120) and $3,000 plus $40 per day (a combined total of $13,560).

157 I noted earlier the difficulty of comparing commercial developments with residential developments. A further distinguishing feature in the present case is that the appellant's building was heritage listed. In Paolucci, reference had been made to Able Lott Holdings. Edelman J regarded the fact that the latter case involved a heritage listed building to be a significant distinguishing circumstance between the offending in that case and the offending in Paolucci. Apart from the substantially smaller maximum penalty that was available in Paolucci, in my respectful opinion little guidance can be derived from it as to the reasonableness of the fine imposed in this case, because of the significant factual differences.

158 In Teissier v City of Rockingham[99] (2014) an individual with no prior offences was convicted following a trial of one offence of a breach of the PDA 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. 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.

159 Notwithstanding the extensive nature of the offending implied by the number of truckloads in Tessier, the nature of the offending in that case, in my opinion, was not as serious as the offending in the present case. It involved an alteration of the land by raising the ground level, but it did not involve construction and alteration of a heritage listed building with a view to expanding a business for commercial benefit. While the fine in that case was imposed after a trial, the fact that a penalty that was 30% of the maximum penalty was considered to be within range in that case does not reveal the sentence in this case to be unreasonable or plainly unjust.

160 The appellant also relied on the following two cases involving corporate offenders. The first involved offending before the 2011 increase in penalty, the second involved offending after that increase.

161 In Swan Bay Holdings Pty Ltd v City of Cockburn[100] (2010), the offender was convicted, after a plea of guilty at the commencement of the trial, of a breach of the PDA by carrying out 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 sought and given. The company was sentenced to a fine of $150,000, which was not disturbed on appeal. That penalty was 75% of the maximum penalty then available for an offence by a body corporate.

(b) After the 2011 increase in penalty applied

162 The appellant also relied on the following cases, involving offending since the penalty was increased in 2011.

163 Chong v City of Mandurah[101] was a case in which the offending occurred after the 2011 increase in the penalty for the planning offence. A company, Success Australia Group Pty Ltd, and its director, Mr Chong, were convicted of two offences of using land for accommodation without planning approval, and for the display of a sign without approval. The premises had planning approval to be used for massage therapy. Double beds had been put in some rooms to be used by staff who wished to sleep at the premises overnight, and purportedly for clients who could not access the massage tables. When the use of the premises for accommodation was discovered, Mr Chong was directed to remove the beds. He eventually gave instructions to the licensee for that to be done, but he failed to ensure the instructions were followed in a timely manner.

164 The magistrate fined Mr Chong $25,000 plus $1,500 in daily penalties for the planning offence and a total of $2,750 in respect of the signage offence. Success Australia was fined $50,000 plus $2,500 in daily penalties. On appeal, Edelman J set aside the penalty imposed on Mr Chong for the planning offence on the basis that it was manifestly excessive 'for a first offence which effectively consisted of a failure to ensure that his instructions to the licensee to remove beds were followed',[102] and also having regard to Mr Chong's financial means. The penalty that had been imposed at first instance amounted to more than a quarter of Mr Chong's total assets. Edelman J substituted a single fine of $5,000 on Mr Chong. In that case, the company was the principal offender, and the fine imposed on it at first instance totalling $52,500 was not disturbed. This was despite findings that the breaches were not of an obvious commercial nature and the only aggravating feature was that the company had not taken appropriate steps to ensure the beds were removed from the premises after first advised to do so.

165 Clearly, the offending in Chong was to be properly regarded as at the lower end of the spectrum of seriousness for planning offences. While Edelman J had regard to the increase in the maximum penalty as a relevant factor, it appears to have been of greater significance in considering the sentence imposed on the company, which had significant means, rather than on Mr Chong, who did not and who was not the principal offender.

166 In Chen v City of Stirling,[103] Ms Chen and her ex-husband were each convicted of carrying out development of land without approval by operating a brothel from the relevant premises, which was prohibited under the applicable town planning scheme. The City had informed the co-offender that such use of the premises had to cease, but it did not. The offence involved a flagrant breach of the planning law. The business could never have been approved or carried out legitimately. The magistrate found that Ms Chen, who was a single mother with two children, 'may have been a silent partner' in the business, but she was aware of the City's concerns and yet did nothing. She committed the offence motivated by commercial gain and was determined to continue to operate the business for as long as possible. She 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. Le Miere J dismissed the appeal against sentence, holding that the sentence was not manifestly excessive. His Honour reached that conclusion notwithstanding the submission made on behalf of Ms Chen that she had limited financial means.

167 In Steelmakers Pty Ltd v City of Swan,[104] the company (Steelmakers), which was the tenant of land, was prosecuted for offences under the PDA. The charge was that, over a period of six months in 2013, it carried out development in the form of 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 PDA. In that case, planning approval had been granted, but it was subject to a condition that the owner, Bayblue, enter into a deed with the City. The deed had to be drafted by the City's solicitors. It was only entered into by the City and Bayblue on 30 January 2014, after the development was carried out. In addition, the City alleged that Steelmakers had not complied with two further conditions of the approval to conduct the development, which concerned repairs, sealing, kerbing and drainage works to parking and access areas near the warehouse. That work was carried out by 30 January 2014.

168 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 resentenced 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 stage, and its overall level of culpability was on the 'relatively low side'.

169 The appellant's argument is that the unreasonableness of the fine of $50,000 imposed in the present case is manifest when one has regard to the penalty imposed on Steelmakers, a corporation which was liable to a maximum penalty of $1,000,000 and a maximum daily penalty of $125,000. This is one of those situations in which the imposition of an additional daily fine in Steelmakers Pty Ltd v City of Swan complicates any attempt to draw comparisons. Nevertheless, it can be seen that the penalties imposed on the company were a very small percentage of the maximum penalties available. However, there are some significant differences between that case and the present case that appear to have resulted in what may be regarded as a relatively lenient disposition. First, the company had planning approval, and the breach involved a failure to comply with conditions of a kind that do not appear to have risked the integrity of the building. The work that had not been done was completed by the time Bayblue entered into the deed with the City. The offending was considered to be at a relatively low level. The circumstances of the present case present a stark contrast of a flagrant breach by the carrying out of alterations that were not approved, with the aggravating factor that the building affected was heritage listed. The offending was properly regarded as being very serious. Secondly, the plea of guilty in Steelmakers Pty Ltd v City of Swan was entered at an early stage, in contrast to the circumstances of this case.

170 In my opinion, the circumstances of that case are not comparable for the purposes of determining whether the fine imposed on the appellant was manifestly excessive. As I have already indicated, Goddard and Able Lott Holdings are better comparators.

171 The respondent relied on the following additional cases in support of its argument that the fine for the planning offence in the present case was within the exercise of a sound sentencing discretion. All of the cases involved offending before the 2011 increase in the penalty for an offence under s 218 of the PDA, and all involved unapproved land use rather than construction or alteration of a building, let alone one that was heritage listed.

172 In Kwa v City of Stirling[105] (2001), an offender with previous convictions and a long history of unlawful use of land, was convicted after trial of unlawfully operating a backpackers hostel on the relevant 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.

173 In Peat Resources of Australia Pty Ltd v City of Cockburn[106] (2002), the offender was convicted following its plea of guilty of unlawfully using land for the storage and stockpiling of soil without planning consent. The offence involved a large scale breach of planning controls 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.

174 Obviously the fact that the offenders in both Kwa and Peat Resources were repeat offenders meant that they did not have the benefit of the significant mitigating factor in this case, namely that the appellant was a first offender. Further, the fact that Kwa was convicted after a trial meant that the offender in that case was not entitled to the benefit of a discount for a plea of guilty. On the other hand, the offences were committed more than a decade before the offending in the present case, and the available maximum penalty in each case was 25% of the current maximum for individuals and corporations respectively. The penalties in those cases must be considered in light of those distinguishing factors. In any event, it is difficult to compare the relative seriousness of the offending because of the very different nature of the offending in each case.

175 In Basso-Brusa v City of Wanneroo[107] (2003), two individuals and a company were convicted after trial of five offences of unapproved development of land. 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. 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. The company was fined $200,000. The appeal against that sentence on the ground that it was manifestly excessive was also dismissed.

176 While no doubt the offending in Basso-Brusa would have constituted a nuisance and raised environmental concerns, the offences involved land use rather than construction and did not have some of the aggravating factors present in this case. Further, as I indicated earlier in these reasons, the fact that the company was also prosecuted and received a substantial fine tends to obscure the comparative value of the fines imposed on the individuals, even before distinguishing the facts of the offending.

177 In Beydoun v City of Stirling[108] (2015), two individuals, Messrs Beydoun and Akkach, and a company, Pearl Asset Pty Ltd, were each prosecuted for contraventions of s 218. The offences were committed in respect of premises in Joondanna which had planning approval for use as a takeaway food outlet and a shop. The approval for use as a takeaway food outlet was subject to conditions that there would be no increase in the seating capacity of the premises and consumption of food on the premises was not permitted. In 2008, a building licence was obtained to undertake work at the premises by way of a fit out to what was described as a café. When a City planning officer attended the premises in late 2008, he saw that food was being consumed on the premises and formed the view that a restaurant was being operated. Specific planning approval was required for the premises to be used as a restaurant. The officer wrote to the proprietors of the café in January 2009 requesting they lodge an application for a change of use to a restaurant. An application for change of use was subsequently lodged, but ultimately it was refused.

178 The charges in Beydoun arose from inspections in May and September 2009 during which it was found that food was being consumed on the premises. Although that constituted a breach of a condition of the approval that was in place for the premises as a takeaway food outlet, Messrs Beydoun and Akkach and the company were charged with carrying out a development of the premises without planning approval, in that the premises were being used as a restaurant. Mr Beydoun was charged with three counts of an offence under s 218, one each for three specific dates (2, 3 and 5 May 2009) on which the premises were operated as a restaurant, the company was charged with one count for operating the restaurant on 3 September 2009, and Mr Akkach was charged with all four of those counts. All three offenders were convicted after trial.

179 The magistrate imposed a single fine[109] on each of Messrs Beydoun and Akkach for all of the offences of which they were convicted. Mr Beydoun was fined $15,000, and Mr Akkach was fined $5,000. The significant difference in those penalties reflected findings that Mr Beydoun was the 'prime mover' in the commission of the offences, and that Mr Akkach, whose role was to prepare and serve food, was not. The maximum penalty applicable in respect of the individuals was $50,000. The company was fined $20,000, the maximum penalty being $250,000. All three offenders were sentenced as first offenders. On appeal, Pritchard J held that the fines imposed were not manifestly excessive.

180 It can be seen from the above analysis that, while there was one aspect of that case that was similar to the present case, in that the offenders had sought to expand their business, so that the offences were committed within the context of a commercial venture,[110] and there had been a degree of flagrant behaviour in the offenders continuing the restaurant operation after they had been told that approval was not given, the offending was otherwise of a very different kind to the present case. The main consequences of the offending were found to be a contribution to noise and parking issues in the neighbourhood. Although both at first instance and on appeal it was considered that there was a need for general deterrence, the offences were seen to be at the 'lower end of the scale of seriousness for offences of this kind, but ... by no means at the lowest end of the scale.'[111] They involved a use of the land that was easily reversible, and that was taken into account.[112]

181 In Beydoun, Pritchard J identified that the range of sentences identified from appeal cases for single offences under the PDA committed by individuals, when the maximum penalty was $50,000, lay between a fine of $4,000 for a breach at the lowest end of the scale of seriousness (in Callan v City of Fremantle,[113] which involved storage of building materials on a residential property) to a fine of $30,000 (in Goddard) and a fine of $10,000 plus daily penalties, totalling $44,300 (in Kwa).[114]

182 Since the increase in the maximum penalty, there have been few cases decided on appeal. While one can identify the lowest and highest penalties imposed ($5,000 in Chong and $20,000 plus daily penalties resulting in a total of $36,600 in Chen), those cases do not establish a range for planning offences under the new penalty regime.

183 Moreover, the cases do not establish a range of what would be within the exercise of a sound sentencing discretion having regard to the particular circumstances of this case. As I stated earlier, in those cases where an appeal alleging manifest excess was dismissed, the penalty that was upheld does not stand as an upper limit or benchmark for offending of a similar seriousness to those cases.

184 Mindful of the need for broad consistency in similar cases, but having regard to the distinguishing features in each of the cases I have considered, including Goddard and Able Lott Holdings, which I consider to be the most apt comparators, and the need to give effect to the purpose of the increase in the maximum penalty in 2011, I am not persuaded that the fine imposed for the planning offence in this case was unreasonable or plainly unjust.

185 In my opinion, the commencement point of $80,000 (40% of the maximum penalty) was at the very upper limit of what may be regarded as an acceptable range for the offending in this case, before taking into account mitigating factors. It reflects a very serious offence that is still well below the level of the most serious type of case identified by the appellant's counsel during argument. Even if one might have expected a lower starting point, it is the final outcome that must be considered in assessing proportionality, and in this case that was arrived at by a generous reduction for mitigating factors.

186 The final outcome may still be regarded as being 'unusually high', but I do not consider it to be so disproportionate as to manifest error. As in Goddard, it is evident that it contains a substantial deterrent component. That is appropriate. The increase in the maximum penalty in 2011 was in the context of amending legislation that was primarily concerned with places of heritage value. For the reasons set out under 'Seriousness of the offence' above, this was precisely the sort of case in which it was necessary to give full effect to parliament's intention that planning offences should be regarded more seriously, especially where heritage listed buildings are affected. That intention was implied as a matter of principle, as outlined in JKL v The State of Western Australia,[115] and expressed by the Minister during the second reading speech.[116]

187 It is not to the point, as was suggested on behalf of the appellant, that a lesser penalty would have had a sufficient deterrent impact upon the appellant, having regard to his financial circumstances. It was right for the magistrate to send a signal to those who carry out development work for commercial gain generally that a breach of the law, particularly a flagrant breach of the kind in this case, will be visited with significant financial consequences. The penalty properly serves to make offending of this kind commercially unattractive.

188 Having regard to the circumstances of the offence and the appellant's personal circumstances, as found by the magistrate, and all the relevant sentencing considerations I have discussed, including what can be ascertained of the standards of sentencing in other cases, I am not persuaded that the fine of $50,000 for the planning offence was manifestly excessive.

189 Therefore, while I would grant leave on Ground 1, I would dismiss the appeal on that ground.

190 This ground contends that the magistrate erred in finding, in the absence of any evidence, that the Shire told the appellant prior to 16 January 2015 that he needed planning approval for the works being carried out. The passage upon which the appellant relies from the magistrate's sentencing remarks was as follows: [117]

[The work] was brought eventually to the attention of the Shire of Augusta­ Margaret River through its officers becoming aware of what was transpiring in about 18 November. Of course, there was an application for planning approval received shortly thereafter. So, self-evidently, the obligations were then made known to the accused who lodged a planning approval application with the relevant authority, that is, the Shire of Augusta-Margaret River. Notably that, despite the clear indication of the awareness of the Shire of Augusta-Margaret River, the work continued.

191 It can be seen that the magistrate did not specifically find that the Shire told the appellant that he needed planning approval. At the hearing of the appeal, the appellant submitted that the adverse finding with which the ground is concerned is the awareness attributed to the appellant in the above passage. The gravamen of his Honour's finding, it was submitted, is that the appellant was made aware that the Shire had found out, through inspection, about the work he was doing, and despite that awareness and being told that he needed approval, he continued with the work. The appellant submits that the finding was not supported by the evidence.

192 While the ground, as formulated, does not articulate the manner in which the alleged error is said to have affected the sentencing process and, therefore, the penalty imposed, the appellant's argument on the appeal was to the effect that the finding affected his Honour's assessment of the seriousness of the offence. The appellant's argument is that the continuation of work in those circumstances (the existence of which, the appellant submits, was not supported by the evidence) would be regarded as exacerbating the flagrancy of the breach and increasing the seriousness of the offence. In essence, the appellant argues that the magistrate found an aggravating circumstance about which he could not be satisfied on the evidence.

193 As was pointed out by Buss JA in PAS v The State of Western Australia,[118] the distinction between aggravating and mitigating circumstances may sometimes be unclear or even ambiguous. The essential point of distinction is whether, in a particular case, a fact or circumstance is likely to result in a more severe or less severe sentence than would otherwise be the case. If the circumstance is one that is likely to result in a more severe penalty, the court cannot act on that circumstance, if it is disputed, unless the circumstance is established beyond reasonable doubt on the evidence available to the court.[119]

194 I accept that if the appellant continued to carry out the building development work without approval, having been made aware that he required approval for the work, it would be an aggravating circumstance, as it would disclose a flagrant disregard of the law and a need for personal deterrence. I also accept that, if he did so in the knowledge that the Shire was aware he had commenced work without approval, such conduct would evince a lack of respect for the relevant authority and may be regarded as increasing his moral culpability. However, I do not consider that this additional circumstance would significantly increase the seriousness of the offence if there was already a basis for finding that the appellant's conduct amounted to a flagrant breach of the law.

195 It is apparent from the magistrate's remarks that he inferred from the appellant's lodging of the application that his obligations 'were then made known to him' and that he had a 'clear indication of the [Shire's] awareness' of the work he was carrying out and the need for approval. In my opinion, those inferences were reasonably open on the information before the magistrate. The question is whether they were the only reasonable inferences open.

196 As for the first part of the finding, it is not clear, in my opinion that his Honour found it was the Shire that made the appellant aware of his obligations. If that was what his Honour intended, then it is correct that there was no evidence that the Shire informed the appellant of his obligations between the Shire becoming aware of the work on 18 November 2014 and the appellant's lodgement of the application for approval. However, as I outlined earlier, an admission had been made on the appellant's behalf that he was aware of his obligations from the moment he proceeded beyond maintenance work. I am not satisfied the magistrate erred on this aspect of his findings. If he did, I am of the view that it has not resulted in a substantial miscarriage of justice, because the key point from these findings concerning the appellant's culpability was his knowledge of his obligations, and that was admitted.

197 As for whether the appellant had a clear indication of the Shire's awareness that the work was being done, there was no explanation advanced by the appellant for the timing of his application for planning approval in December 2014. It does seem an unlikely coincidence that he made the application within weeks after the Shire did in fact become aware of the work he was doing. However, I accept that a finding that the appellant had a 'clear indication' of the Shire's awareness of the work may not be the only reasonable finding from the fact that the appellant lodged the application in December 2014. At the very least, the appellant should have been given an opportunity to address that proposition before such a finding was made.

198 However, I do not consider that the finding was of any significance in the sentencing for the planning offence. The key point was that the appellant's offending was flagrant. Although his Honour appeared to emphasise the point that the appellant knew of the Shire's awareness in his remark that, '[n]otably, despite the clear indication of the awareness of the Shire, the work continued,' his Honour's finding of flagrant behaviour did not depend on that fact. It is necessary to have regard to what his Honour said:[120]

But, of course, it is the prosecution's assertion that in some respects there was a degree of flagrant behaviour by this accused, that he undertook the work despite, in all the circumstances, his knowledge and understanding of the obligations. To that extent it was a conscious decision by him to progress the work as expeditiously as he could without the inconvenience of delay in the planning process. And that is a submission that is certainly supported, and I accept as a fact, as in (sic) being in the mind and intent of the accused.

199 Whether or not the appellant was aware that the Shire knew about the work after 18 November 2014 did not feature specifically in that finding of flagrant behaviour. What was of significance was that the appellant knew and understood his obligations. As is apparent from the facts outlined on behalf of the appellant before the magistrate,[121] it was admitted on his behalf that he was told as early as 30 September 2014 that he would need 'appropriate certification' for any work that was to be done, and he knew he would have to lodge an application for planning approval and get building approval, but he commenced work thinking he could get retrospective approval. In those circumstances, the finding of flagrant offending was well supported.

200 In summary, any error in linking the appellant's knowledge of his obligations with the Shire becoming aware of the work on 18 November 2014, or in finding that the appellant knew that the Shire had become aware of the work he had done, was of no significance to the magistrate's determination of culpability and the penalty imposed, in my opinion. There has been no substantial miscarriage of justice.

201 Therefore, while I would grant leave on this ground because it is arguable that factual errors were made, I would dismiss the appeal.

202 This ground alleges specific error. It attributes to the magistrate a conclusion, namely 'that the alleged unauthorised works described in the [statement of material facts] gave rise to the offences under the [PDA] and the Building Act equally'. The magistrate did not express any such conclusion. As framed, there is no rational basis on which the ground could succeed.

203 In Samuels v The State of Western Australia, the Court of Appeal said that the consideration of the merits of a proposed ground of appeal, when leave is being considered, 'will be confined to the ground of appeal as particularised - but it must, of course, always be a full consideration of that which is advanced in the appellant's case in support of the application.'[122] The appellant's submissions ultimately put the ground in terms of a failure of the magistrate to undertake the task of determining 'which of the offensive works constituted which offence and dealing with the penalties accordingly', which is what the ground asserts should have happened. The submission asserts that the magistrate fell into error as a result of that failure. However, it fails to identify how. Even if the ground were to be regarded as alleging error in terms of the submissions, rather than the actual wording of the ground, I would refuse leave on this ground for the following reasons.

204 The appellant's counsel explained the rationale for this ground as follows: [123]

It's vital in determining the degree of criminality to have specifically in mind what matters constitute breaches of the planning legislation, as opposed to the building legislation, in any event.

205 So, the submission was that in order to determine the seriousness of each of the offences, the magistrate was required to identify the specific conduct that constituted each of the offences. This was not a proposition submitted at first instance. Nor did the appellant's counsel at first instance purport to differentiate, during the plea in mitigation, between work that was relevant to the planning offence and work that was relevant to the building offence. In those circumstances, it was of little surprise that the ground was not pursued with any enthusiasm at the hearing of the appeal. Yet, it was not abandoned.

206 Leave should generally be refused where there is no adequate explanation for the failure to take the point the subject of the ground of appeal in the lower court and it seems to be of doubtful merit.[124]

207 It may be accepted that the approach that was taken before the magistrate was for the prosecution to rely on a consolidated statement of facts said to constitute the offences, and for the appellant's counsel to respond in kind. Those facts provided a foundation for both offences. No authority has been identified by the appellant to support the proposition that, in those circumstances, the magistrate is required to dissect the facts in respect of each offence.

208 As I noted when dealing with the legislative framework, it is apparent from the relevant statutory definitions that 'building work' for the purposes of the Building Act can also constitute 'development' under the PDA. Ground 3 and the submission in support of it do not raise any argument under s 11 of the Sentencing Act[125] about double punishment. The only question is whether the magistrate could adequately assess the seriousness of each offence without identifying specific behaviour for each.

209 It is obvious that, although a number of the physical acts constituting the building offence also constituted the undertaking of development of the property without planning approval, the planning offence was of a different character and more expansive than the building offence. Each charge was directed at a different form of mischief.

210 The building offence is primarily concerned with the physical alterations to the building, and the need for proper structural and safety standards to be maintained. This may be gleaned generally from the provisions of the Building Act, and in particular the provision that is made for building work that may not require a building permit. Part 5 div 1 of the Building Act provides for regulations[126] that may specify categories of building work for which a permit is not required. Such work includes work that is low in value, or has a low level of risk in relation to the safety of users of the building or members of the public, or does not require monitoring by a permit authority. The work in this case was not exempted. So the offence addresses the appellant's failure to have the structural changes properly considered before building proceeded, and to ensure the work was properly monitored once it started.

211 The planning offence is concerned with the broader impact of the physical alterations, affecting the use of the property and its impact on the wider environment, as well as public interest considerations, such as the preservation of buildings of heritage value.

212 It has not been demonstrated that, in determining the seriousness of each offence, the magistrate failed to have regard to the relevant considerations specific to each offence, notwithstanding the overlap of facts.

213 In my opinion, even if one were to extend the ambit of Ground 3, allowing for a full consideration of that which has been advanced in the appellant's case in support of the ground, there is no rational basis on which the ground could succeed. Leave should be refused.

214 Accordingly, leave to appeal is granted in respect of Grounds 1 and 2, but the appeal is dismissed in each case. Leave is refused in respect of Ground 3.

215 I will hear from the parties in respect of any consequential orders.

1. The fine imposed by Learned Magistrate Fisher in respect of the conviction under the Planning and Development Act 2005 (WA) (PD Act) is manifestly excessive in consideration of:

1. The maximum penalty being $200,000; 2. The standards of sentencing for an individual since the amendment to the PD Act to increase the maximum penalty to $200,000;

1. The unauthorised development carried out being at the lower end of the scale of seriousness;

1. The personal financial circumstances of the Appellant; 2. The following mitigating factors: 1. The Appellant pleaded guilty; 2. The Appellant was a first offender; 3. The Appellant fully cooperated with the prosecutor in that: 1. The Appellant applied for and was granted retrospective Planning Approval which included the work wrongly carried out and within reasonable time; 2. The Appellant applied for and was granted a Building Permit which included work wrongly carried out and within reasonable time; and 3. The Appellant ceased work on receipt of the Directions Notice. 4. The Appellant was motivated to commence works in order to undertake maintenance rather than for commercial gain; 5. The work did not create an economic benefit; 6. At the time the Appellant commenced the works he had a mistaken belief as the works did not require Planning Approval; 7. In commencing the works, the Appellant did not do so by subterfuge or deceit; 3. The very low number of aggravating factors.

1. The Learned Magistrate made the following adverse findings of fact against the Appellant which were not supported by the evidence, or adequately so:
   1. that the Appellant was told by the relevant authority prior to 16 January 2015 that he needed planning approval for the works being carried out;

The Prosecution's Statement of Material Facts states:

On 18 November 2014 the Shire became aware that work was being carried out on the Property by the Accused (Paragraph 7);

The Shire received an application for planning approval from the Accused (Paragraph 8);

On 16 January 2015, the Accused was advised to stop all building work until he had received a building permit (Paragraph 17); and

On 16 January 2015, the Accused was issued with a Notice of Direction to Stop pursuant to section 214 of the PO Act (Paragraph 17).

The Learned Magistrate held at the trial (sic) that

[The work] was brought eventually to the attention of the Shire of Augusta Margaret River through its officers becoming aware of what was transpiring in about 18 November. Of course, there was an application for planning approval received shortly thereafter. So, self-evidently, the obligations were then made known to the accused who lodged a planning approval application with the relevant authority, that is, the Shire of Augusta-Margaret River. Notably that, despite the clear indication of the awareness of the Shire of Augusta-Margaret River, the work continued.' (Transcript page 39); and

[I]t was a conscious decision by him to progress the work as expeditiously as he could without the inconvenience of delay in the planning process (Transcript page 39).

1. The Magistrate erred by concluding that the alleged unauthorised works described in the Prosecution's Statement of Material Facts gave rise to the offences under the PD Act and the Building Act 2011 (WA) equally, rather than determining which of the offensive works constituted which offence and dealing with the penalties accordingly.

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

[2] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler

& Roberts-Smith JJA). Or, as it was also put by their Honours, 'it would not be irrational, fanciful or absurd to envisage it succeeding' in respect of each of those grounds.

[3] Planning and Development Act (WA) s 162, s 164 and s 214; Shire of Augusta-Margaret River Local Planning Scheme No 1 cl 1.3 and cl 8.1.

[4] Planning and Development Act (WA) pt 5 div 1.

[5] Interpretation Act 1984 (WA) s 5 (definition of 'subsidiary legislation').

[6] Interpretation Act 1984 (WA) s 44.

[7] Planning and Development Act 2005 (WA) s 164(3).

[8] Building Act 2011 (WA) s 6(3).

[9] Such modifications to the language of that written statement as occurred when it was read aloud by the prosecutor are of no consequence.

[10] The property is Lot 5 on Diagram 7109 and all of the land comprising Certificate of Title Volume 1024 Folio 991.

[11] Magistrates Court transcript (MC) ts 5.

[12] Shire Planning Approval/Consent No P214650. The appellant was charged with the offences on 24 February 2015, prior to retrospective approval.

[13] The requirement that the work was to be done by a registered builder was referred to by the appellant's counsel in a 'chronology' that was tendered (see below) and during submissions: MC ts 19.

[14] Except where quotation marks are used, grammatical amendments have been made to the tendered document for clarity, without affecting the substance.