Reeves v Ranson [1999] TASSC 52

Judgment ID Number: [1999] TASSC 52

1 In a court of petty sessions the applicant and his wife pleaded guilty on a complaint dated 16 June 1998 to a charge that since on or about 20 January 1998, they (as joint proprietors) had continued to use the second floor of "Cadorna House" at 91A Cormiston Road, Riverside for the purposes of hostel accommodation (welfare building) without having a permit as required by the Municipality of Beaconsfield Planning Scheme 1986 and the Land Use Planning and Approvals Act 1993 ("the Act"), s51. The charge was laid under the Act, s63. The learned magistrate determined to penalise only the applicant, who was fined $7,500 plus a special penalty of $3,300 in respect of continuing contravention. He has moved the Court to review the penalties on the following grounds:

"1 That the learned Magistrate erred in fact and in law in imposing a fine of $7,500.00 in that the fine was manifestly excessive in all the circumstances.

2 That the learned Magistrate erred in fact and in law in imposing a fine of $3,300.00 in respect of a continuing contravention of Section 63(2) of the Land Use Planning and Approvals Act 1993 in that the fine was manifestly excessive in all of the circumstances.

3 That the learned Magistrate erred in fact and in law in imposing a fine of $10,800.00 in totality in that the total fine was manifestly excessive in all of the circumstances.

4 That the learned Magistrate erred in fact and in law by failing to take sufficient account or take sufficient account of the mitigating factors put to him by the counsel for the Applicant.

5 That the learned Magistrate erred in law by failing to enquire as to the financial means of the applicant prior to imposing a total fine of $10,800.00."

2 It is plain that ground 4 cannot succeed without the applicant being able to persuade the Court of manifest excessiveness in the penalty, which is raised by grounds 1, 2 and 3. I will say nothing more concerning ground 4.

3 The Act, s63(2), provides inter alia that a person must not use land in a way that is contrary to a planning scheme. By subs(3), contravention of subs(2) amounts to an offence which is punishable on summary conviction. By subs(4), a person convicted of the offence is liable to a fine not exceeding 500 penalty units ($50,000), and a person who is convicted of a continuing contravention is liable, in addition to the penalty otherwise applicable to the offence, to a fine for each day during which the contravention continued of not more than 50 penalty units ($5,000).

4 By s51(1) it is provided inter alia that a person must not commence any use which, under the provisions of a planning scheme, requires a permit unless the planning authority which administers the scheme (in this case the Municipality of Beaconsfield) has granted a permit in respect of that use and the permit is in effect.

5 The facts of the case which were put before the learned magistrate by prosecuting counsel were as follows. The applicant and his wife were the joint proprietors of a retirement village at Cormiston Road, Riverside. There were a number of units at that village, one of which was a two storey residence known as Cadorna House. On the second floor they had an elderly tenant for some while. She was substantially unable to look after herself. Although they had planning permission to use other units for welfare building accommodation, they did not have it for the second floor. In about November 1997 an application was made to the Council for approval for that use on the second floor. The Council split evenly on the issue. As a result there was deemed approval (see s59(1)) but the matter had to be referred to the Resource Management and Planning Appeals Tribunal for the determination of conditions. It was probably on 23 December 1997 that the Tribunal approved the application with a number of conditions. One of the conditions was that, for fire safety reasons, an access ramp be constructed externally from the ground level to the first floor. Another condition was that the applicants obtain a licence under the Hospitals Act 1918, Pt3, for the occupation of the unit (as a licensed private medical establishment).

6 Prosecuting counsel told the learned magistrate that the effect of the Act, s53(4), was that where a permit is subject to a requirement to do further works or obtain another approval, the permit does not come into operation. So, he said, until the two conditions were satisfied there was no permit for the use. That was not completely correct, in that s53(4) merely provides that where any other approval under the Act or any other Act is required for the proposed use, the permit for that use does not take effect until that other approval has been granted. In any event, if the second floor of Cadorna House was used by the applicant, as it was, without the external access ramp being constructed, that amounted to an offence under s63(2).

7 The learned magistrate was informed that the applicant and his wife continued to permit the elderly person to reside on the second floor without compliance with the two conditions. The Council referred the matter back to the Tribunal on 13 May 1998 because of that. On 11 June 1998 the Tribunal made a determination (I presume it was an order under s64), restraining them from using the premises until there had been compliance with the two conditions. The Tribunal published a written decision to that effect on 15 June. Notwithstanding, the applicant and his wife continued the unlawful use. It was not until 23 June 1998 that "they obtained a certificate of completion in respect of the ramp". On 15 July 1998 the responsible Minister indicated that the necessary licence would be granted under the Hospitals Act 1918, but its issue would be delayed because of an election. Prosecuting counsel said that he did not press any date beyond 15 July.

8 It was submitted for the complainant that it was a case of a commercial enterprise engaged in by the defendants for profit. There was a public safety factor involved, he said, the access ramp being necessary so that there could be easy access to the first floor. The other access was a steep stairwell. Counsel submitted that it was a case of contumelious disregard of the requirements of the Act, and he pointed out that the maximum penalty was 500 penalty units plus 50 penalty units for each day the offence continued.

9 Counsel for the defendants made a plea in mitigation, much of which I find difficult to understand. She said to the learned magistrate that the resident first moved into occupancy upstairs in about May 1997. Before allowing her to do so, and not knowing of the need to obtain the planning permit, the defendants "invited the Health and Family Services to look at the premises". She did not explain why that was done, but she said:

"Health and Family Services had no difficulty with the upstairs being utilised as a residence but on their advice the Reeves consulted the Fire Department and the Ambulance Department and invited both those departments into their premises to look at the upstairs of Cadorna House for use as a hostel accommodation. Both required works to be completed and they were to the satisfaction of both partners."

What she was meaning to convey is unclear. What works were required by both departments was not stated and it is not clear when the work was done. The reference to "both partners" was probably to the defendants on the one hand and the respective departments on the other hand.

10 Counsel for the defendants said that once they were informed that a permit was required they cooperated. They were not told, she said, "until in and around late 1997". They were informed by the Council that an application for a permit was a mere formality and they believed at the onset (outset?) that the permit would be forthcoming in the short term (quickly?). Counsel referred to the inability of the Council to determine the application as having occurred in September 1997 (prosecuting counsel said the application to the Council was made in about November 1997) and said that as a result of the Resource Management and Planning Appeals Tribunal becoming involved, conditions were imposed, and this "drew the process out longer". She said "had the Council made the decision to approve that application back [sic] September 1997, the builder had been contracted at that stage and was prepared to commence work and it was looking promising that the work would have been completed towards the end of 1997". Just what work she was referring to was not explained. The Tribunal's requirement of a ramp was not imposed as a condition until late December 1997.

11 The learned magistrate asked was it not a fact that the unlawful user of the premises went on for six to seven months after the Tribunal imposed the two conditions. Counsel for the defendants agreed, but said that what she was indicating was "that the plans for this development were proceeding long before that", and had the Council made a decision approving the application for the permit "the works would have been on the go". She said that "as it eventuated as soon as possible the building application was lodged in March 1998". Why a period of three months should be regarded as being "as soon as possible" is impossible to understand. Counsel said that had the Council approved the application for a permit "the builder was prepared to start but the builder who had been contracted to do the work, and was obliged to do the work, could not commence until May". There was no explanation why an application for a building permit could not have been lodged in say January 1998 and another builder engaged to commence the construction of the ramp by say February. Referring at least initially to the time in May 1997 when the resident was allowed into occupation, counsel said to the learned magistrate:

"Mr and Mrs Reeves have allowed a female resident to move upstairs due to the fact that the person was in need of care. This was not an act done in the blatant disregard of the law but an act performed with a motive to assist a person in need. At the time there was no alternative arrangements available and the resident could not reside in the downstairs part of the accommodation. At that stage the building was almost completed, the works were in the pipework so to speak, close to being in process, and as soon as those works completed your Worship understands that the two conditions, the original condition of building a ramp was conditional upon the licence being approved, and as soon as the building work was completed the certificates issued, Mr and Mrs Reeves made application under the Hospitals Act for the issue of a licence. The accommodation then had to be inspected and that was inspected on 7 July and the papers now for that licence have been perhaps not issued but been received by the Reeves but the Minister has not signed (inaudible) on that licence."

12 The reference by counsel to "at that stage the building was almost completed, the works were in the pipework so to speak, close to being in process" should, I think be regarded as mere gobbledegook.

13 Counsel said that as soon as the building work was completed and "certificates issued", Mr and Mrs Reeves applied under the Hospitals Act 1918 for the issue of the required licence. They then had to wait two weeks for an inspection by Community and Health Services before the application for the licence could proceed.

14 In response to a question from the learned magistrate, counsel for the defendant said that the resident was paying the defendants "just $30 a day which barely covered the costs of having her upstairs and the premises open and her needs, as well as attending to her care 24 hours a day which is the reason why she was accommodated within the hostel". No Government subsidy was provided for her. The accommodation downstairs at Cadorna House was "bed accommodation" but there were no vacancies for a female resident. Counsel said there were "no other care units available on living at Cadorna Village. Alternatively arrangements would have needed to have been made by her family and that just wasn't available". It is not clear what was not available.

15 On the hearing of the motion to review, it was agreed by counsel that before the learned magistrate prosecuting counsel mis-stated a fact when he said that the applicant and his wife were the joint proprietors of a retirement village consisting of a number of units and a two storey residence known as Cadorna House. Before me counsel agreed that the applicant and his wife were the joint proprietors of Cadorna House only, that Cadorna House is a two storey complex within Cormiston Village but the applicant and his wife were not the proprietors of the rest of Cormiston Village.

16 In his comments on passing sentence the learned magistrate addressed the applicant as follows:

"Well I take into account what is said on your behalf and from one point of view I am sure you believed you were doing the right thing for this elderly woman and not disrupting or disturbing her continued occupation. On the other hand, of course, certain, you jumped the gun really in regard to these matters and two conditions remained unsatisfied for a substantial period, mainly the access ramp, the external access ramp and the licence under the Hospitals Act to permit occupation. Now that, I note the builder could have proceeded at an earlier date had Council come to a decision. It didn't and the matter therefore went to the Tribunal and I suppose in a sense that thwarted what you had anticipated occurring at a much earlier time. I think throughout you have shown a readiness to have everything done properly. The problem is that, for you that matters were not done at the stage at which the law required them to be done. The penalties that are provided for are substantial, 500 penalty units, which works at $50,000 for the offence itself and 50 penalty units on a daily basis, that is $5,000 per day. Now the matter went to the Tribunal on two occasions, following the first of those work ultimately was undertaken to complete the access ramp and ministerial approval was sought no doubt urgently and it was finally indicated on 15 July. I think it appropriate to apply the special penalty merely to that second period after the matter had gone to the Tribunal on the second occasion, and between ministerial approval was granted and that is a total of 33 days. I must have regard to the penalties provided for by the Parliament as to the seriousness with which the Parliament itself views breaches of planning schemes but of course there are breaches and breaches. Some are more serious than others, and I certainly do not regard this as the most serious example of its type. Other breaches may have much to do with maintaining a dangerous situation for instance, and I don't think that is a significant matter here. Nonetheless, this elderly resident continued to occupy the premises and she was charged for that although your counsel has said that the charges barely covered your expenses. I gather you would have received almost $5,500 from her occupation over that six or seven months before matters were completed. In relation to the female defendant, L M Reeves, as against the female defendant, L M Reeves, she is discharged from the proceedings. The male defendant, R J Reeves, is convicted. I impost a fine of $7,500 and a special penalty of 10 penalty units per day, rather than 50, and for 33 days that works out at $3,300."

17 Ground 5 of the motion complains that the learned magistrate made an error of law by failing to enquire as to the financial means of the applicant prior to imposing the fines totalling $10,800. Counsel for the applicant described it as the principal ground upon which review was sought. She conceded that counsel for the applicant should have addressed the learned magistrate concerning the applicant's financial means and that the failure to do so amounted to an error by counsel.

18 The determination of the appropriate amount of a fine in a particular case is a matter of judicial discretion, and not lightly to be overturned by an appellate court. Its exercise depends upon the circumstances of the case, including not only the circumstances of the offence but also the particular circumstances of the offender. It has been held in many cases that the appropriate quantum of a fine should depend in part upon the offender's reasonable capacity to pay. So in Broughton v Lowe [1979] Tas R 309 (NC), unreported 20/1979, Neasey J said that the imposition of a fine which is beyond the offender's reasonable capacity to pay is neither just nor rational and in Maynard v White A108/1994 at 1, Zeeman J referred to the general principle that there ought not be imposed upon an offender a fine which is beyond that offender's reasonable capacity to pay. See also Kaye v Vagg (No 2) (1984) 11 A Crim R 127 and Devlyn v Lowe A31/1980.

19 The applicant's counsel referred to Murray v Harris 33/1974, in which Green CJ, when reviewing a sentence of two years' imprisonment for two counts of motor vehicle stealing, said that a judge or magistrate has the power, and sometimes the duty, to inform himself as to matters relevant to the exercise of the sentencing discretion, whether or not the parties have asked him to do so and whether or not the parties have tendered evidence relating to those matters. Counsel also referred to Hrvojevic v R 24/1979, in which the Court of Criminal Appeal considered a sentence of two years' imprisonment for hotel breaking and stealing. At 2 Neasey J said, in the circumstances of that case, that it was for the appellant to show that the trial judge imposed sentence upon the basis of insufficient materials in the sense that he could and reasonably should have had more adequate information before him. His Honour said that the judge was not bound to acquire information relevant to sentence in any particular form and in that case the judge had the benefit of submissions from experienced counsel for the accused. His Honour said that whether the exercise of the sentencing discretion had been vitiated by reason of the court having acted on insufficient materials in the above sense was a question depending upon the circumstances of the particular case. Authority for that was to be found in Suckling v Ling [1973] Tas SR 106 (NC), unreported 27/1973, Quinn v Canning [1967] Tas SR 265 (NC), unreported 36/1967, and Emery v McGowan 48/1971.

20 All of the cases to which I have just referred concerned whether a sentencer should have called for a pre-sentence report from a probation officer before imposing a sentence of imprisonment upon an offender who, in most of the cases, was youthful. No consideration such as that arises here. The only punishment prescribed for the applicant's offence was a fine.

21 It may well be a sound argument, in the circumstances of some cases, that a sentencer is in error by imposing a fine without inquiring about the financial circumstances of the offender. An obvious example where that might be the case is one where the offender is not represented by counsel and there is clearly insufficient information concerning the offender's circumstances to allow the sentencing discretion to be properly exercised. However, that cannot be said about this case. Prima facie the applicant was a businessman who had engaged counsel to make a plea in mitigation on his behalf. It is normally to be expected that counsel will put before the magistrate all relevant information, concerning both the offence and the offender, which might be relevant to the question of penalty. This was not the common case where it appears that the offender might come from a poor socio-economic group and that his or her personal circumstances might call for an individualised penalty having regard to his or her poverty. If the applicant had not been represented by counsel, and no indication was given to the magistrate of his financial circumstances, it might well be arguable that the magistrate should have at least inquired about his financial position before determining the quantum of the fine. But it is unnecessary for me to decide that question. The applicant was represented by counsel and the learned magistrate was told that he and his wife were the joint proprietors of a retirement village, that there were a number of units at that village one of which was a two storey residence known as Cadorna House, that they had planning permission to use other units for welfare building accommodation and that they had engaged a builder for the purpose of having constructed the required access ramp and had also had other works completed upstairs. It was put by prosecuting counsel that this was a case of a commercial enterprise engaged in by the defendants for profit. There was no reason for the learned magistrate to suspect that the applicant was in a poor financial position. In my view he was entitled to presume, in the absence of information from the applicant's counsel to the contrary, that the applicant was the proprietor of a commercial operation, the assets of which were substantial. In all the circumstances I am unpersuaded that the learned magistrate was in error by failing to inquire as to the financial means of the applicant. There may well have been a great number of facts which could have been stated on behalf of the applicant, and which were not stated, which might have had the effect of reducing the amount of the fine. The magistrate, in the circumstances of this case, could not have been expected to ferret out what was material but unstated. In my opinion ground 5 must fail.

22 The remaining grounds of the motion concern whether the penalty was manifestly excessive. It ought first be observed that the prescribed maximum penalty was a fine of $50,000 plus $5,000 for each day during which the contravention continued. Having regard only to the period of time to which the charge applied which was from 20 January 1998, and the complaint was made on 16 June 1998, the total prescribed maximum penalty amounted to about $785,000. To the date relied on by the prosecution, 15 July 1998, it was about $930,000. It cannot be said that the penalty which was imposed was anywhere near the maximum penalty which Parliament arguably has reserved for the worst type of cases.

23 It was put to the learned magistrate as a mitigatory factor that when the applicant first commenced to offend in about May 1997, he did not realise that he was offending. Presumably he was aware of that by September 1997 or a little later. It was not suggested that he did not know that thereafter he was offending. Even after the conditional permit was granted in December 1997 he continued to offend. There was no clear suggestion that the resident or her family were at any time requested to look for or move to another place of residence. After the grant of the permit it took the applicant about five months to arrange for a builder to construct the required ramp, there being an inadequate explanation for the delay, and during that period of time the offence continued. Because he was continuing to offend, the Council applied to the Tribunal in an attempt to put a stop to it on 13 May 1998. Then, on 11 June 1998, the Tribunal determined to restrain the applicant from continuing to offend. Nevertheless he did not stop and continued for another 33 days or so. The special penalty of $3,300 was clearly justified.

24 The applicant's offence was committed in the course of a business carried on by him and his wife for the purpose of profit. Deliberate offending against the planning laws by the owners of businesses generally require significant penalties. Small fines will not act as a real deterrent to those engaged in business. Having regard to the matters to which I have referred, and particularly to the maximum penalties which are prescribed, I am not persuaded that it has been established that the learned magistrate erred by imposing a manifestly excessive penalty.

25 I record that counsel for the applicant told me of two other cases which were prosecuted under s63 in which magistrates imposed fines of $1,000 and $2,000 respectively. I reject any suggestion that the learned magistrate in this case ought to be found to have imposed a manifestly excessive penalty as a result. It is not appropriate to compare a case with such a limited number of other cases.

26 For these reasons the motion to review will be dismissed.