Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Citation : CITY OF FREMANTLE -v- ABLE LOTT HOLDINGS PTY LTD

File No : FR 13090 of 2007, FR 13091 of 2007, FR 13093 of 2007

Criminal law and procedure - Regulatory offences - Development of land without approval - Appeals against sentence - Imposition of fines - Whether penalties individually or in aggregate were excessive

House v The King [1936] HCA 40; (1936) 55 CLR 499

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

2 This case concerns the prosecution of the appellant by the respondent for three offences of which the appellant ultimately pleaded guilty. The charges were:

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

Section 223 of the Planning and Development Act, at the relevant time in 2007, provided a general penalty of a fine of $50,000 and, in the case of a continuing offence, which this was accepted to be, a further fine of $5,000 for each day during which the offence continued.

Because the appellant is a body corporate, s 40(5) of the Sentencing Act 1995 (WA) made it liable to a fine five times the maximum fine that could be imposed on a natural person convicted of the offence. The maximum penalty to which the appellant was liable was therefore a fine of $250,000 and a daily penalty of $25,000.

For this offence the appellant was fined $100,000 and a daily penalty of $500 was applied over the period of 162 days during which the contravention of the relevant clause of Local Planning Scheme No 4 remained unremedied. The additional penalty was therefore $81,000 and the total penalty imposed on the appellant for this offence was $181,000.

I note in passing that, by the Heritage and Planning Legislation Amendment Act 2011 (WA), Pt 3, s 10, which came into operation as recently as 3 March 2011, the general penalty provided by s 223 of the Planning and Development Act was increased to a fine of $200,000 and a daily penalty of $25,000. But, of course, that is of no relevance in relation to the issues raised by the appeal against the fines imposed upon the appellant for this offence.

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

At the relevant time, s 374(1) prescribed a penalty of a fine of $200 - $5,000 and a daily penalty of $20 - $100 for each day during which the offence continued. Again, this was a continuing offence, proceeding with the building in a form which was not approved by the issue of a building licence between the dates mentioned.

Because the appellant is a body corporate and the penalty for this offence was not specifically prescribed for the body corporate, s 40(5) of the Sentencing Act operated to increase the maximum penalties to five times those prescribed in the Local Government (Miscellaneous Provisions) Act, ie, a maximum fine of $25,000 and a maximum daily penalty of $500.

Again, I note in passing, that by the Local Government (Miscellaneous Provisions) Amendment Act 2007 (WA), the penalty provided by s 374 was substantially increased with effect from 1 July 2008 (Government Gazette (6 June 2008), 2179). Of course, as I have noted, this offence was committed prior to that amendment being made. The penalty now provided is a fine of $50,000 and a maximum daily penalty of $5,000.

For this offence, the magistrate fined the appellant $12,000 and imposed a daily penalty of $150 for 185 days. That made the total daily penalty $27,750 and the total fine for this offence was $39,750.

(3) Finally, between 13 February 2007 and 16 August 2007, the dates during which it was alleged that the appellant proceeded with the building without approval, in relation to the same land in Fremantle, the appellant committed the offence of allowing work to be done in contravention of a stop work notice issued under s 401A of the Local Government (Miscellaneous Provisions) Act, contrary to s 401A(5). The prescribed penalty for that offence was a fine of $5,000 and, having regard to the provisions of s 40(5) of the Sentencing Act, in the case of the appellant the maximum penalty was a fine of $25,000. The applicant was fined the sum of $10,000.

3 I shall return in more detail to the facts of the case, but it will be apparent, even at this stage, that the offences to which the appellant pleaded guilty and of which it was convicted were factually linked. They related to the same development project in relation to the same piece of land in Beach Street, Fremantle. In essence, the appellant was convicted of carrying out development of the land without the necessary approvals, without a building licence issued in respect of a building according to an approved plan and specifications, and contrary to a stop work notice.

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

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

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

7 There are three appeals, one against each of the sentences imposed on the appellant. The appeals are upon identical grounds in respect of which leave to appeal has been granted. The grounds are as follows:

1. The primary Court erred in law, further or alternatively in fact, in finding that the appellant presented the respondent with a fait accompli as the respondent was unlikely to be able to cause the demolition of the subject building, in circumstances where the primary Court should have held that, to the extent that the subject building as constructed by the appellant deviated from plans and drawings for which planning approval pursuant to the City of Fremantle Local Planning Scheme No. 4 and a building licence had been obtained, the deviations could be, alternatively could substantially be, remedied and the construction of the building containing such deviations did not present the respondent with a fait accompli.
2. The primary Court erred in law, further or alternatively in fact, in finding that the offence, and the other offences for which the appellant was sentenced on 9 March 2010 (a contravention of s.21 8 of the Planning and Development Act 2005, the subject of Prosecution Notice No. 13090/07, and a contravention of s.374(1)(a) of the Local Government (Miscellaneous Provisions,.) Act 1960, the subject of Prosecution Notice No. 13091/07), were in the top range of seriousness when the primary Court should have found that the offences were in the lower range of seriousness.
3. The primary Court erred in law, further or alternatively in fact, in failing to accord any weight, alternatively sufficient weight, to the appellant's previous record and, instead, placing weight upon an assumption that development companies come and go, are often used only for one development and often have the same people behind them.
4. The primary Court erred in law, further or alternatively in fact, in finding that:

4.1 the offences were brazen;

4.2 the appellant, for its own commercial reasons and convenience, tried to force its way through red tape and present the respondent with a fait accompli;

4.3 the appellant knew that the respondent was unlikely to be able to cause the demolition of the building; and

4.4 the offences caused the respondent a great deal of trouble,

in circumstances where the primary Court should have found that there were compelling reasons for all deviations from the approved plans and the appellant attempted to liaise with the respondent at material times.

...

1. The primary Court imposed a sentence that was excessive having regard to all of the circumstances, including:

6.1 the appellant's previous record;

6.2 that the appellant had pleaded guilty;

6.3 the facts that:

6.3.1 the appellant had obtained planning approval under the City of Fremantle Local Planning Scheme No. 4 and a building licence for the construction of the subject building;

6.3.2 the development was the redevelopment of a preexisting building, including substantively preserving the façade, and did not involve the construction of a new building;

6.3.3 to the extent that the development undertaken deviated from the approved plans and drawings, there were compelling reasons for the deviations and the deviations were of a relatively minor nature and could be, alternatively could substantially be, remedied such that the development would comply with the approved plans and drawings; and

6.3.4 the appellant attempted to liaise with the respondent at material times.

8 It will be seen that, in essence, the thrust of the appellant's case on appeal is that each of the sentences imposed was excessive. It is contended that the magistrate erred in the view his Honour took of the seriousness of the offences, and in his conclusion that they represented a deliberate attempt by the appellant, for reasons of commercial convenience, to circumvent the limitations in relation to the building work inherent in the approvals obtained for the redevelopment of the existing old building. In the course of the building work, the appellant contends, deviations from the approved plans and specifications were required for good reason.

9 The appellant contends that, contrary to the view taken by the magistrate, the deviations from the approved work were not of a major character, made in a brazen attempt to present the respondent with a fait accompli which would force it to approve the work ex post facto, because what had been done could not be reversed to bring the building back into compliance with the approvals given. On the contrary, the appellant asserts, the deviations from the approved work were not only required for good reasons, but if not ultimately approved, could be reversed, or substantially reversed, to enable the building to comply with the approvals originally obtained.

10 The appellant argues that the magistrate's wrong view of the seriousness of the offences, and his desire to fix monetary penalties which, individually and in aggregate, were proportionate to that erroneous view of the seriousness of the offences, distracted his Honour from giving proper weight to the fact that the appellant had a previous good record and had pleaded guilty to the offences of which it was convicted.

11 This is not, I think, a case where there is said to be error in his Honour the magistrate's findings of primary fact. Rather, it is argued, he erred in the inferences he drew as to the characterisation of the offences committed.

12 The proceedings before the Magistrates Court took a particular course to which I should refer. The prosecution notices having been issued on 9 October 2007, pleas of not guilty were advised in respect of the offences described above, and two other charges which ultimately did not proceed. The matter came on for hearing in the Magistrates Court at Fremantle on 24 March 2009. It had only been listed for one day and, as it happens, only one prosecution witness gave evidence on that date before the matter was adjourned.

13 It came on again on 17 November 2009. Charges against the principal of the appellant, Mr Fazio, were discontinued and pleas of guilty were entered to the charges brought against the appellant. The proceedings were substantially completed on that day, but there were further proceedings in relation to the plea on 5 March 2010. The proceedings on that day particularly concerned a statement of the departures from the approved plans for the building to which the charges related. There was substantial agreement as to a schedule to be provided by the parties to the court, and that was debated at some length at the hearing on 5 March 2010.

14 At the conclusion of that hearing, his Honour took time to consider, and the sentences to which I have referred were passed on 9 March 2010. His Honour the magistrate made brief remarks on sentence. He referred to the schedule of departures from the approved plans which, it seems, his Honour accepted as establishing the relevant facts. His Honour did not, beyond that reference, make specific findings of fact.

15 He knew, of course, that the appellant was an experienced builder and developer. It had been operated by Mr Fazio for many years and his experience as its driving force was considerable. He knew what was required in relation to obtaining local government approvals for work of the kind which was the subject of these charges. He had no previous convictions and nor did the appellant.

16 Further, his Honour remarked on the fact that there had been pleas of guilty, albeit, as his Honour said, entered in circumstances which, to some extent, reduced their mitigatory effect.

17 I set out the essential parts of his Honour's remarks:

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

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

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

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

18 These are taken from the schedule of the departures from approved plans upon which, it seems, the parties worked in informing the magistrate of the facts during the sentencing phase of the proceedings. I have also had regard to a time-line document provided by the appellant.

19 It seems that the building on the land was an old warehouse. Its façade was thought, by the respondent, to be of particular interest and to be preserved in the course of any redevelopment work which was to be carried out. The only other part of the building which was to be incorporated in the redevelopment, as I understand it, was some roofing timbers which were to be preserved as a feature of a common area of the new building.

20 Planning approval for the redevelopment of the land and building was originally obtained on 24 June 2003. The approval was to expire three years later. It was approval of a proposed development which would preserve those aspects of the building to which I have referred, but otherwise replace it with three buildings on the land, providing a total of eight accommodation units and a unit for a caretaker. The accommodation was to be short-term rental accommodation attractive to tourists or holidaymakers.

21 On 19 July 2004, a building licence was issued, approving the construction work in accordance with lodged plans. The plans made some changes to the proposal outlined in the plans upon which the original planning approval was given. So far as I can see, these changes were substantially in relation to finished floor levels. There appears to be no change to the three buildings which were to be constructed, each being a building of four storeys in height. There was no change, it seems, to the number of accommodation units or to the nature of the caretaker's apartment or to the requirement to provide 14 parking bays. The building licence expired on 19 July 2005, but at that stage the planning approval which had been given was still current.

22 An extension of that planning approval was sought by an application made on 21 June 2006, a few days only before the approval already given would expire. Ultimately, on 6 November 2006, an extension for 12 months, backdated to the expiry of the previous approval on 24 June 2006, was granted. Of course, by then the building licence had expired.

23 In December 2006, there was rain and some local flooding in the Beach Street area. Counsel for the appellant described the event as 'an unseasonal heavy downpour'. A rear wall of the existing building collapsed, depriving other walls of lateral support and creating a danger of further damage. It seems that the limestone footings were compromised and the front wall abutting Beach Street was leaning out towards the street. If they were to be preserved they had to stabilised. Subsidence of the ground had to be prevented and a pier and buttress solution employed to render the walls left standing safe from collapse.

24 However, it does seem to be clear that such work as may have been done in this regard, without approval, was very much only a part of the story. The appellant discovered that it had inadvertently allowed the building licence to expire. This was not realised until February 2007. An urgent application was made for an extension of the licence. That was refused on 13 February 2007, and a stop work notice was served.

25 Nonetheless, work continued on the site, without a building licence and contrary to the stop work notice, during the period from 13 February 2007 to 16 August 2007, which was the date when, after a final inspection of the site by the respondent's officers, instructions were given to commence prosecution action.

26 The appellant said, and pleaded in mitigation to the magistrate, that at least initially, in February, it had to continue with the work because it wished to alleviate the danger of further collapse of the old walls, and it wished to comply with an improvement notice issued in respect of the land to the appellant by the Department of Consumer and Employment Protection, which directed it to rectify the danger of collapse. That notice was issued on 16 February 2007.

27 Mr Fazio, the court was told, met with the Mayor of Fremantle and officers of the respondent on 28 February 2007. Apparently he then said that he felt unable to stop the work, although he appreciated that the character of the work was different from that which had been approved. He said he would be making an application for the necessary approval in due course.

28 The court was told that the Mayor had said that he could, 'keep building' and bring the variations to the City later on. His Honour the magistrate queried whether anybody could really believe that such advice would bind the City and could be acted upon. Counsel for the appellant said to the court that the conversation was advanced, not as an excuse, but as a matter in mitigation (ts 17 November 2009, 25 - 26).

29 With respect, I would take the same view as his Honour. If Mr Fazio was given that advice by the Mayor, he could not have thought that that would constitute authority to keep the work going. He was an experienced developer and builder through the vehicle of the appellant corporation. He knew the work being done was not only without the authority of a building licence, but was contrary to the terms of a stop work notice which continued to have effect, and was of a character which was substantially different from the work that had been approved.

30 It will be recalled that the appellant's application for an extension of the building licence was refused in February 2007. As I understand it, the appellant was told that that would not suffice to cover the work being done and proposed, and that a new application for a licence was required. It appears that such an application was never made. So far as the planning approval was concerned, it will be recalled that the extension which had been granted would provide approval until 24 June 2007, but in respect of a development which, in my view, it is fair to describe as being of an entirely different character to that which was approved.

31 The end date, in relation to the commission of the offences, 16 August 2007, is simply the date of an inspection which led to instructions being given by the respondent for the prosecutions to be commenced. The start date of 13 February 2007, in relation to building without a building licence and contrary to the stop work notice, relates, as I understand it, to the date when the respondent refused the application to extend the building licence and issued the stop work notice.

32 The start date for the offence of doing the development work without planning approval, 8 March 2007, is somewhat artificial. It is the date when the Local Planning Scheme No 4 came into operation. I was told that it was deemed sufficient to bring the prosecution on that basis and avoid a separate earlier prosecution for carrying out the work without planning approval.

33 As to the nature of the work that was approved, and the nature of the departures from that work as the development was proceeding to be constructed, a project for which retrospective approval was ultimately sought by the appellant in September 2008, the principal features of the evidence before the magistrate in the form of the statement of facts by prosecuting counsel and the agreed schedule, seem to be as follows.

34 I have said that there were three buildings planned. The first was immediately behind the Beach Street façade. It was to be a caretaker's apartment with associated facilities. It was constructed significantly higher than approved, and that had the effect of having the building overhang the original parapet wall. It no longer blended with the façade and overshadowed it in a way which could not be rectified and would not have been approved. Four accommodation units were incorporated into the new design. Changes had been made to the façade.

35 Buildings 2 and 3 were the original accommodation buildings. Each was to contain four accommodation units, three storeys in height, over undercroft parking, with internal access between the different storeys. It is convenient to observe that, while there were originally to be eight three-storey accommodation units, there were to be 14 parking bays. Ultimately, the total number of accommodation units would be 29, and eight, or a maximum of ten, parking bays would be provided to service them, although the appellant observes that there is additional land available behind its development which later allowed for the provision of extra parking bays.

36 All of the buildings had changes made to the constructed floor levels and their overall height. The internal communication between different levels of multi-storey accommodation units were dispensed with. External staircases linking the different levels via balconies were provided. Additional areas to those provided for accommodation were designated for bar, café and laundromat facilities. It is abundantly clear that a much greater intensity of land use was involved in the as-constructed project.

37 I do not know what is the present position with respect to this development, but as at the time when this matter was before the Magistrates Court it had not been approved and the respondent informed the court that it would not be approved.

38 For the appellant, the point is made that some of the work was required to preserve the structural integrity of the old warehouse building which remained, and significant parts of the additional unapproved work could, if necessary, be reversed. But there was little discussion before his Honour about the difficulty or ease of so doing and the expense that would be incurred.

39 The point is, however, in my view, that the development as constructed was very significantly different from that which was approved, and the construction work was done when Mr Fazio, the guiding mind and will of the appellant, was well aware that it was not approved, there was no licence, a stop work order was in place, and it might not be possible to obtain the necessary approvals retrospectively. In that sense, it was undoubtedly right to regard the appellant's building activity as involving a deliberate flouting of the law and the process of obtaining prior approval which Mr Fazio was well aware was necessary.

40 These appeals are concerned with the broad allegation that the fines imposed were, in all the circumstances as they were or should have been found by the magistrate to be, manifestly excessive: Criminal Appeals Act 2004 (WA), s 8(1)(a)(iii). By s 14(2) of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, the appeal may be dismissed if the court considers that no substantial miscarriage of justice has occurred.

41 In relation to an appeal against sentence, that power may be restated by the proposition that, although it may be found that the magistrate has erred in some respect bearing upon the exercise of the sentencing discretion, if, nonetheless, absent the error and upon the factual basis which ought to have been found, the sentences should be upheld as within the range of a proper exercise of sentencing discretion, then the appeal should be dismissed. The same proposition applies on an appeal against sentence to the Court of Appeal, under s 31(4)(a) and s 32(5).

42 The same principle is applied under the common law: House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505, where Dixon, Evatt and McTiernan JJ said:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

43 Therefore, unless an error can be identified which can be seen to have produced the sentence or sentences which are manifestly excessive or inadequate, or unless that appears to the appellate court to be the case even though no particular error can be identified, the appeal will be dismissed. Even in a case of identified error, if the sentence passed is within the bounds of a proper exercise of judicial discretion, the appeal will be dismissed because no injustice has resulted.

44 Under s 53 of the Sentencing Act, in a case such as this where the only appropriate punishment was the imposition of fines for the offences committed, the offender's means and capacity to pay were to be considered by the sentencing court, to the extent that it was informed about those matters. In this case, such considerations do not appear to have any impact upon the quantum of the fines imposed.

45 The magistrate's decision about that, including the decision as to whether any daily penalty should be imposed in relation to either or both of the two offences where that was provided for, and if so, the quantum of that daily penalty, were questions to be determined by the application of ordinary sentencing principles.

46 His Honour had to make findings of the relevant facts. He did that, it would appear, by accepting the schedule that was put before him in relation to the nature of the deviations and I think it is clear he accepted what he was told about the timing of the work which was performed, work which was by no means complete to bring the development to lock-up stage by the end date of the periods of breach involved in the various offences of which the appellant was convicted.

47 His Honour had to make an evaluation of the seriousness of the offending behaviour within that factual context; the nature of the breaches of the law which were involved; the explanation for those breaches, if any was offered; whether the breaches could be seen to be, at least in part, motivated by considerations of commercial gain, either of an immediate character or ultimately in relation to the returns to be derived from the development; the history of the appellant and Mr Fazio, his experience and knowledge as the guiding mind and will of the company of the requirements of the law in relation to the approvals process; whether there was any history of offending, and any other matter raised in mitigation.

48 In this case it seems to me that the magistrate rightly thought that a consideration of primary importance was the need to impose penalties upon the corporate appellant sufficient to deter it from future breaches of the law and sufficient to operate as a general deterrent for others who might be so minded. 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 judgment of the court, the appellant might regard as an unfortunate, but acceptable, operating expense.

49 The reason for that approach in relation to planning cases and offences against planning laws was, with respect, well-explained by Hasluck J in Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 [74],where his Honour said:

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.

In that case, at [37] - [46], his Honour helpfully restated in some detail the applicable sentencing principles which I have endeavoured to summarise above.

50 I have set out the material parts of the remarks on sentence made by his Honour the magistrate.

51 With one exception, it seems to me that his Honour's conclusions were well open to him and supported his exercise of sentencing discretion. The exception is his Honour's observation that development companies are often short-lived. They may have a life which is co-extensive merely with a particular development. There was, I think, no evidence that that was an observation which could be applied to this appellant. Indeed, the evidence was rather to the contrary.

52 But the gravamen of the particular observation, which did apply to this appellant, was that it was a commercial developer, developing the project upon this land for profit, and the greater the number of available leasehold units the more profitable the project could be expected to be, particularly if there were added features, such as a bar and café, which might make a short-term occupancy more attractive to the tourist or holidaymaker.

53 This was the focus of his Honour's observation which is criticised in the grounds of appeal, and in that central observation, in my opinion, his Honour did not err. 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.

54 It was undoubtedly the case, as his Honour the magistrate found, that in part the changes made from the approved plans were motivated by heritage considerations and the need to preserve the existing old building, so far as it was to be retained, from further damage. But that by no means provided an explanation for the extent of the variations from the approved plans for the period of time during which the offending behaviour continued, and for the blatant disregard, over that period of time, of the stop work order, the lack of an appropriate building licence and the lack of planning approval for the work that was being undertaken.

55 In my respectful opinion, overall, the only available conclusion was that drawn by his Honour the magistrate. This appellant, no matter how it was motivated when it commenced the work in breach of the law, continued that breach for such a period and to such a degree that the motivation must have been that if it could demonstrate that the changes were reasonably compatible with heritage consideration, it would have a better chance of retrospective approval.

56 Its prospects in that regard would be improved by presenting the respondent with a fait accompli. Although it would be possible substantially to reverse the process of deviation, the changes made would be so extensive that the respondent might shrink from strictly applying its powers in that regard, so enabling the development to take a form which was more commercially profitable, although well beyond that which had originally been approved.

57 His Honour the magistrate was right to find that this was serious offending, by not means in the lower range of seriousness of such offences. There is nothing to suggest that his Honour overlooked the fact that the appellant was a first offender. His Honour's remarks reveal that he gave proper consideration to the entry of the pleas of guilty and gave them proper weight.

58 In my opinion, the individual fines imposed were, having regard to the available sentencing framework and the applicable maximum penalties, well within the proper range of sentencing discretion, both individually and in their aggregate, given the factual links between the offences committed.

59 As to the daily penalties, again I consider that this was a case where it was appropriate to impose such penalties to mark the court's response to the considerable period of the offending behaviour. Again, neither individually, having regard to the maximum daily penalties available, nor in their aggregate, were the daily penalties excessive in this case.