Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Application for leave to appeal against sentence - Displaying an advertisement without prior consent of local municipality - City of Bayswater Town Planning Scheme No 24 - Planning and Development Act 2005 - Erection of temporary advertising hoarding on vacant lot - Plea of guilty - Fined $50,000 - Leave to appeal granted - Appeal allowed - Fine of $5000 substituted

Planning and Development Act 2005 (WA)

Magistrates Court Act 2004 (WA)

Sentencing Act 1995 (WA)

Suitors Fund Act 1964 (WA)

1 EM HEENAN J: On 27 January 2012 the appellant, Uxcel Pty Ltd, pleaded guilty to contravening the provisions of a planning scheme. Her Honour Magistrate L J Atkins sentenced the appellant to pay a $50,000 fine and ordered that the appellant pay the costs of the respondent, the City of Bayswater. By an order made on 10 May 2012 Hall J granted leave to appeal on the second of three proposed grounds of appeal and referred the grant of leave on the two remaining grounds of appeal to this hearing. This hearing took place on 10 December 2012. At the conclusion of that hearing I granted leave to appeal on the two remaining grounds, allowed the appeal and set aside the $50,000 fine, replacing it with a fine of $5,000. I ordered the respondent to pay the appellant's costs to be taxed if not agreed. I also announced that I would publish written reasons for my decision at a later date. These are those reasons.

2 The appellant operates a real estate agency known as Ray White Uxcel. On 5 May 2011 the appellant advised the respondent that it wished to erect a sign on a vacant lot at 326 Walter Road West, Morley, advertising the appellant's successful sale of the vacant lot. The respondent did not issue any formal approval.

3 On 13 May 2011, officers of the respondent inspected the property at 326 Walter Road West and discovered that a sign measuring 3.6 by 2.4 metres had been erected. The sign had a total area of 8.64 square metres. In a letter of 25 May 2011 the respondent informed the appellant that the sign required planning approval and that no approval had been given, and asked that the sign be removed. Further requests were made but the sign was not removed until 21 August 2011.

4 On 1 September 2011 the respondent filed a prosecution notice in the Magistrates Court of Western Australia, alleging that the appellant had contravened cl 5.6.1.1 of the City of Bayswater Town Planning Scheme No 24 (the Scheme), contrary to s 218(a) of the Planning and Development Act 2005 (WA). Section 218(a) provides:

Contravening planning scheme or conditions on development

A person who

(a) contravenes the provisions of a planning scheme; or

...

commits an offence.

For the purpose of this Scheme, the erection, placement and display of advertisements and the use of land or buildings for that purpose is development within the definition of the Act requiring, except as otherwise provided, the prior approval of the Council.

6 On 14 November 2011 the appellant entered a written plea of not guilty. However, when the matter came on for hearing before Her Honour Magistrate L J Atkins on 27 January 2012 the appellant entered a plea of guilty and the parties made sentencing submissions. After counsel concluded their submissions, her Honour said:

Okay, thank you. I've heard what has been said by the prosecution and by [counsel for the appellant] in relation to this matter and taking into account the fact that this has been a guilty plea at an early stage in the proceedings, it's recognised that there is a need for a general deterrence to a degree in relation to this matter and it's also accepted that there has been multiple contacts by the city with the estate agent which did not result in the immediate removal of the sign as required in the resulting proceedings today. I've noted the maximum penalty of $1,000,000 and $125,000 per day for 79 days. As far as this matter is concerned, there will be a fine of $50,000 and $1476.45.

7 The maximum penalty referred to by her Honour is derived from the Planning and Development Act and the Sentencing Act 1995 (WA). A natural person convicted under s 218 is liable to a maximum penalty 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: Planning and Development Act s 223. The appellant, as a body corporate, is liable to a fine of five times the maximum that could be imposed on a natural person convicted of the same offence: Sentencing Act 1995 (WA) s 40(5). The 79 days referred to by her Honour appear to be the number of days between the respondent's first letter to the appellant, of 25 May 2011, and the date of the respondent's last inspection of the property, on 11 August 2011.

8 On 24 February 2012 the appellant sought leave to appeal against the sentence imposed, on the following grounds:

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

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

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

(2) The Magistrate made an error of law because the sentence was manifestly excessive.

Particulars

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

(a) The circumstances of the offence and in particular that the development was low impact, temporary and solely visual in nature.

(b) The mitigating factors and in particular:

(i) the Appellant's explanation given for the offending during the plea of mitigation, which was that the offending arose from misinterpreting exemptions in a town planning scheme;

(3) The Magistrate made an error of fact when she found that multiple contacts with the Appellant had not resulted in the removal of the sign, whereas multiple contacts had resulted in the removal of the sign.

9 On 6 December 2012 the appellant applied to have the third ground of appeal amended to read:

The Magistrate made an error of fact and law when she found that it was accepted multiple contacts with the Appellant had not resulted in the immediate removal of the sign, whereas this is not what had been accepted by the Appellant's Counsel and Representative.

10 At the hearing of this appeal I gave the appellant leave to make this amendment to the third proposed ground of appeal, having confirmed that the amendment was not opposed. I have proceeded by reference to the amended third ground of appeal.

Ground 1: the learned Magistrate's reasons were inadequate

11 The appellant in its submissions in support of the first ground of appeal referred to the common law duty to give sufficient reasons for decision and to s 31 of the Magistrates Court Act 2004 (WA), which provides:

(1) The Court's reasons for a judgment in a case

(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;

(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.

12 The obligation of a magistrate to give reasons for decision and the requisite content of those reasons under s 31 of the Magistrates Court Act has been considered in a number of recent cases: DGS v Douglas [2009] WASC 12 [91]-[98] (Jenkins J); Bennett v Carruthers [2010] WASC 5 [13]-[21] (Hall J); Bennett v Carruthers [2010] WASCA 131 [26]-[27] (Mazza J, McLure P $ Newnes J agreeing); Giles v Douglas [2011] WASC 14 [27]-[31] (Simmonds J); Francis v Todd [2011] WASC 185 [13]-[19] (Edelman J); Bauerhuit v Dean [2011] WASC 253 [37]-[40] (Sleight C); Hodder v Ball [2012] WASC 350 [36]-[42] (Hall J) and by me in Hayward-Jackson v MasonWalshaw [2012] WASC 107 [69]-[70].

13 In Francis v Todd, Edelman J observed, after referring to the common law duty to give reasons for decision at [13] and [14] and to s 31 of the Magistrates Court Act:

[17] Section 31 of the Act therefore requires that the judgment identify the facts accepted and the law applied, the reasons for doing so, as well as the underlying intellectual process behind the conclusions reached: Tran v Clayton [2003] WASCA 318 at [37]- [38] (McLure J); Bennett v Carruthers [2010] WASCA 131 at [31] (Mazza J).

[18] In each case, an assessment of whether the minimum content, or sufficiency, for reasons has been met requires considerations of the reasons as a whole, including findings which can be inferred from reasons: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 (Meagher JA); Bennett v Carruthers at [27] (Mazza J). Further, the reasons considered as a whole, cannot be divorced from the context of the case, including the manner in which the case is conducted, the significance of evidence or legal issues, concessions which are made, and matters which are not disputed. Other factors to consider are whether (as in this case) the decision was reserved (see Pallot v Harrison (Unreported, WASC, Library No 950261, 12 May 1995) 6 (Owen J)) and, associated with that, the time period for which it was reserved (seven weeks in this case), whether there were substantial oral or written submissions (in this case, 31 pages of closing submissions from the accused and 27 pages from the respondent) and the nature and content of those submissions in relation to the issues concerned.

[19] The need to consider the reasons, as a whole, in light of all the circumstances of the case means that analogies with other cases will not usually be helpful to determine whether the reasons are sufficient.

14 The appellant submitted that the learned Magistrate's reasons were inadequate because they did not identify the level of seriousness of the offence in question and because they did not identify which part if any of the penalty imposed was a daily penalty. In support of this second submission, the appellant cited McKechnie J's remarks in Johnson v Ball [2006] WASC 216 [14]:

... The Magistrate erred in imposing a global sentence, a term not known to law. By doing so it cannot be known whether he regarded one assault as more serious than the other, whether he regarded the assaults as each attracting concurrent sentences because they arose substantially out of the one transaction, or whether he regarded one assault as requiring a separate or partly separate punishment from the other. It would be merely speculation on my part to conclude that his sentence could be explained as two concurrent sentences of 16 months each. The Court record is endorsed 'global sentence'. In the circumstances this ground of appeal succeeds.

15 In Johnson, the magistrate in question imposed a sentence of 32 months without parole in respect of two charges of assaulting a police officer. The magistrate did not impose separate sentences in respect of each charge, but instead imposed a 'global sentence' of 32 months. The appellant's submission, as I understood it, was that her Honour Magistrate Atkins erred in a similar manner as the magistrate in Johnson, because her Honour did not indicate which part, if any, of the $50,000 was a head penalty and which part, if any, was a daily penalty.

16 The respondent submitted that the analogy is a bad one, because the appellant was charged with only one offence. Furthermore, on the respondent's submission, it can be inferred from the transcript that the learned Magistrate did not impose a daily penalty; rather, the learned Magistrate imposed a penalty of $50,000, that being 5% of $1 million, the maximum head penalty.

17 The appellant's submission drew attention to factors referred to by the learned Magistrate which, the appellant said, suggested that a daily penalty was imposed: the respondent's 'multiple contacts' asking that the appellant remove the sign, and the maximum daily penalty of $125,000 for 79 days. The appellant then drew attention to the sentence ultimately imposed, which did not refer to any daily penalty and appears on its face to have been a head penalty.

18 It seemed that the appellant's submission depended on the premise that two of the factors referred to by the learned Magistrate during sentencing the 'multiple contacts' and the maximum daily penalty were irrelevant and should not have been taken into account for the purposes of imposing a head penalty. Having identified that underlying premise, it seemed to me that I should reject the appellant's submission that the Magistrate made an error of law by failing to state which part of the sentence was a daily penalty. Reading the transcript from the Magistrates Court it is clear to me that a head penalty was imposed and that what is complained of is actually a different point altogether. In this context, Heydon J's observations in AK v Western Australia [2008] HCA 8; (2008) CLR 438 [84] are apposite:

In many cases the question of whether [adequate reasons have been given] will also raise difficulties of distinguishing between, on the one hand, a defective statement of legal principle, an unconvincing factual finding, an invalid inference or a questionable application of principle to fact and, on the other hand, a failure to state a principle of law, make a finding of fact or expose the 'reasoning process linking' the principles of law to the findings of fact. (footnotes omitted)

19 The appellant's second submission in support of its first ground of appeal was that the learned Magistrate 'did not adequately state the factual basis for the sentence passed'. In particular, the appellant contended that her Honour did not identify the level of seriousness of the offence, or state which propositions she accepted and which she rejected for the purpose of sentencing the appellant.

20 The respondent submitted that the learned Magistrate did indeed state the factors which she took into account when sentencing the appellant. These were:

(b) the plea in mitigation made by counsel for the appellant;

(e) the multiple contacts' by the respondent to the appellant, asking that the sign be removed; and

(f) the maximum applicable penalties for the offence.

21 The respondent also submitted that it was not necessary for the learned Magistrate to set out all her findings because there was no factual dispute between the parties once counsel for the appellant conceded there had been multiple contacts by the respondent.

22 Before the learned Magistrate, counsel for the respondent made the following submissions as to the appropriate sentence:

The penalty for these offences was recently increased and the relevant penalty is a maximum of up to $1,000,000. There can be a daily penalty of $125,000 a day. If a daily penalty was to apply, there was 79 days in the prosecution to which it could apply. The city's position is that this type of signage breach commercial decisions. Here a commercial decision was made at the place for the sign. It's a prominent location on a busy intersection and despite requests to remove it, that didn't happen. So the maximum penalty is $1,000,000. As to costs, I would seek costs based on four hours at the accused costs scale of $350 an hour, $1,400, disbursements are $76.45, so a total of $1,476.45.

23 Counsel for the appellant then made a plea in mitigation:

Your Honour, in summary, the defendant intended to do the right thing when placing the sign originally but made a mistake of law and did not act as quickly as it should have and with the humility it should have when its mistake was pointed out to it by the counsel's staff. The city has complained amongst other things that the sign does not fall within the list of exempt advertisements contained in the appendix (indistinct) for the Town Planning Scheme, which I have provided and highlighted the relevant section. The lot was a multiple dwelling. Under the exemption, as your Honour can see, the sign requires approval unless it does not exceed five square metres. My client made the mistake of interpreting that to mean five square metres per dwelling in the multiple dwelling lot.

In fact, on a proper statutory interpretation of the section, that means five square metres for the entire lot of multiple dwellings, so the sign was too big at 8.64 square metres. After the council staff first got in contact with her, the defendant's director believed that she had verbal approval from a staff member at the council for the large sign when she was subsequently contacted again when she should have acted and been more humble. Unfortunately, she thought she had the verbal approval and was waiting for an email from that officer to confirm that verbal approval. The sign was removed on 21 August 2011.

The defendant accepts that it's not appropriate to rely on verbal approvals because conversations can be misinterpreted and in any event, if she was given advice as to the law and its role, ignorance of the law would not be a sufficient defence. In view of the [insight] shown, I would respectfully submit that there's little need for specific deterrence. Real estate agents have an incentive to remain on good terms with their local governments. There's frequent interaction seeking information about planning, compliance and driving matters and they don't want to be in trouble with the council again.

In relation to general deterrence, the defendant accepts that town planning schemes need to be obeyed and that a message needs to be sent but submits that general deterrence in sentencing in this case is within the context of a desire to comply with the Town Planning Scheme but misunderstanding it. The defendant is meaningfully involved in the baseballing community outside of its real estate work as part of its charity work amongst others. It sponsors every child with autism within the City of Bayswater to have a trainer provided for them for free at the Morley Recreation Centre.

There's no prior record. The defendant is a relatively successful real estate agent but along with most real estate agencies has had a hard time with the depressed property market in recent years, so for the purposes of sentencing I submit, your Honour, that the case falls at the lower end of the scale and bearing in mind the costs order as well, that an appropriate sentence is a small fine.

24 Of the matters raised by counsel for the respective parties, the learned Magistrate expressly referred to the maximum applicable penalty (including the 79 day prosecution period), the multiple contacts by the respondent, and the need for general deterrence. In addition, her Honour also referred to the fact that the appellant had entered a guilty plea, which was not explicitly raised by counsel. Her Honour did not refer to the appellant's explanation as to why the offence occurred, did not state whether appellant's explanation was consistent with the appellant's failure to remove the sign after the respondent's first request and did not state whether the appellant had made a commercial decision to contravene the Scheme, as the respondent contended. Nor did her Honour refer to the need or otherwise for specific deterrence, or the overall level of seriousness of the appellant's offence.

25 In Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87, Murray J was called to determine an appeal against a sentence imposed for a planning offence. The grounds of appeal were to the effect that the sentence was excessive. In the course of considering those grounds, his Honour discussed the intellectual process undertaken by a sentencing magistrate [46] [47]:

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.

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 [the appellant's director], 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.

26 Sections 31(c) and (d) of the Magistrates Court Act provide that a magistrate need not canvass all the evidence, or all the legal or factual arguments, arising in a case when giving reasons for a judgment. To similar effect are the observations of McLure J in Sheppard v Blakey [2001] WASCA 309 [25], a decision made prior to the enactment of s 31(1) but one which is still applicable:

The failure by a decision maker to mention a matter expressly in his or her reasons does not necessarily give rise to an inference that it was not considered. This is particularly so in the Court of Petty Sessions where a magistrate is not obliged to give full and detailed reasons on all aspects of the decision-making process. The reasons may be stated shortly without being developed in detail. It is sufficient if they disclose the essential intellectual process by which the decision was arrived at: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 248; R v Nevermann (1989) 43 A Crim R 347 at 350. In the absence of credible evidence to the contrary, it is to be assumed that the magistrate has complied with the duties imposed by the legislation and taken relevant matters into account: Bes-sell v R (Unreported, CCA SCt of WA, Library No 980199; 4 March 1998); Bienke v Minister for Primary Industries and Energy (1966) 64 FCR 567 at 576-577.

27 In the present case, the reasons given for the sentence imposed did not disclose the essential intellectual process from which the learned Magistrate's decision was derived. While it can be accepted that the reasons did not have to address every point, they were required to address the key issue. The key issue for the learned Magistrate was the seriousness of the appellant's offence; in order to determine that issue, her Honour had to characterise the appellant's wrongdoing in light of the respondent's submissions and the plea in mitigation.

28 Counsel for the appellant sought to characterise the offence as a minor offence, committed inadvertently. Counsel for the appellant stated that the sign was erected because the appellant had misinterpreted the Scheme and thought the sign did not require planning approval and that, after the respondent's initial contact, the appellant had believed it had verbal approval. Counsel for the respondent sought to characterise the offence as a 'commercial decision' to contravene the Scheme, and submitted that the appellant had simply disregarded the respondent's multiple contacts requesting that the sign be taken down.

29 Although her Honour referred to the multiple contacts, presumably as an aggravating factor, her Honour did not state any overall view as to the seriousness of the appellant's offence in light of the respondent's submissions and the plea in mitigation. Her Honour said only that she had heard what had been said by counsel. Nor can her Honour's conclusion as to the seriousness of the appellant's offence be inferred from her reasons: although the fine imposed was only 5% of the maximum head penalty, it was, in absolute terms, a substantial sum. In this respect her Honour's reasons were inadequate.

Ground 2: the sentence imposed was manifestly excessive

30 The principles applicable to this ground of appeal were summarised by Hall J in Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 [67] [69]:

A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implicit error: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [126] (Buss JA); Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ and Hayne J).

A claim of manifest excess depends upon establishing implied error in the type or length of sentence imposed. The implied error that must be established is that a sentence of the nature or length imposed could not have been reached in the exercise of proper sentencing discretion.

In order to determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ).

31 The learned Magistrate correctly stated the maximum sentence for the appellant's offence, being a head penalty of $1,000,000 and a daily penalty of $125,000. Her Honour also made brief reference to the need for general deterrence, which is a consideration relevant to the standard of sentencing customarily observed for planning offences. For instance, in Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81, Hasluck J said [74]:

... 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.

32 Hasluck J's comments draw attention to the importance, when imposing a sentence for a planning offence, of determining whether the offence was committed inadvertently or with some credible explanation or whether, on the other hand, it was committed in brazen disregard of town planning laws. Sentences imposed for planning offences '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': Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87 [48] (Murray J).

33 The scale of the work undertaken without planning approval is also relevant to the sentence imposed, as Hall J noted in Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 [71]:

Offences of this nature can vary significantly in their circumstances. They can range from minor unapproved works by an owner builder to their own home to significant works at a major commercial development. The size of the maximum penalties reflects the potential seriousness of breaches and the importance placed on compliance by the legislature.

34 Thus, a distinction may be drawn between contraventions involving an 'easily reversible illegal use of the land' and contraventions involving the 'construction and alteration of buildings', with the former being less serious than the latter: Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39 [36] [37] (Pullin JA, Buss &Mazza JJA agreeing).

35 The question that arises, having stated the standards of sentencing customarily observed with respect to planning offences, is the degree of seriousness of the appellant's offence in this case. The appellant submitted that the offence was low on the scale of seriousness of planning offences. Although the sign was erected without planning approval, the appellant says, it was low impact, temporary and solely visual in nature. The respondent submitted that the sign was not low impact or temporary, and pointed out that the sign was substantial in size and placed in a prominent location at a busy intersection for over three months. I accepted the appellant's submission on this point. Although the sign was large and placed in a prominent location, it was easily removed and, compared with many of the contraventions of s 218(a) seen in other judgments of this court, quite insignificant in terms of size and impact.

36 The appellant also submitted the sentence was excessive given that the appellant had explained, in its plea in mitigation, that the offence had been committed as a result of the appellant's misinterpretation of the exemptions in the Scheme and, later, the appellant's mistaken belief that it had been given verbal approval to erect the sign. The respondent in its submissions sought to characterise the offence as a 'commercial decision' to contravene the Scheme. It argued that the appellant had simply disregarded the need for approval as well as the respondent's multiple contacts requesting that the sign be taken down.

37 During the hearing of this appeal counsel for the respondent suggested there was no exemption in the Scheme that would alleviate the need to obtain planning approval in respect of a sign placed on a vacant lot that had already been sold, regardless of the size of the sign. I do not need to determine that question. It is sufficient to say that if the appellant did believe its sign fell within one of the exemptions in the Scheme, that belief ought not to have survived the respondent's letter of 25 May 2011. The same may be said of the appellant's belief that the sign had verbal approval.

38 Indeed, there is some tension between the appellant's plea in mitigation and the submissions made in the hearing before me. During the plea in mitigation counsel for the appellant acknowledged that the appellant had not acted with the humility it should have or as quickly as it should have when it was asked to remove the sign. It follows that the appellant's explanation that the offence arose as a result of mistaken beliefs cannot explain why the sign was not removed after multiple contacts from the respondent. In my view, the appellant's explanation should be taken with some reserve.

39 The appellant's offence, still, was fairly low on the scale of seriousness of planning offences. Although the appellant should have been quicker to remove the sign, the sign itself was, as the appellant submitted, low impact, temporary and solely visual. Furthermore, on the evidence I found it impossible to conclude that the appellant had made a commercial decision to flout the planning laws. Her Honour, as I have discussed in relation to the second ground of appeal, did not explicitly deal with these matters.

40 Finally, the appellant submitted that factors personal to the appellant and the absence of any need for specific deterrence of the appellant should be taken into account when determining whether the sentence imposed by the learned Magistrate was manifestly excessive. Section 53 of the Sentencing Act is relevant in this context:

53. Considerations when imposing a fine

(1) Subject to Division 1 of Part 2, if a court decides to fine an offender then, in deciding the amount of the fine the court must, as far as is practicable, take into account

(b) the extent to which payment of the fine will burden the offender.

(2) A court may fine an offender even though it has been unable to find out about the matters in subsection (1).

41 The appellant's means were raised briefly in the Magistrates Court, when counsel for the appellant described the appellant as a 'relatively successful real estate agent' which, nevertheless, had 'had a hard time with the depressed property market in recent years'. The issue was also raised before me. Counsel for the respondent suggested that a $50,000 fine, for a corporate offender such as the appellant, was essentially a minor sum and only meant that one of the appellant's employees might not get a new car. Counsel for the appellant, under instructions from the appellant's director, said the $50,000 fine would force the appellant to terminate one of its employees. During the plea in mitigation, counsel for the appellant also referred to the appellant's lack of prior offences and work in the community, both of which are undoubtedly relevant to the sentencing exercise.

42 It seemed to me that the sentence imposed by the learned Magistrate could not have been reached in the exercise of proper sentencing discretion. I reached this conclusion in large part because the appellant did nothing more, in the final analysis, than erect a sign and fail to promptly remove it. Coupled with the appellant's lack of any prior record, I consider that the $50,000 fine imposed by her Honour was manifestly excessive.

Ground 3: the learned Magistrate found that the appellant had accepted something it had not accepted

43 The appellant's third ground of appeal arose from the following exchange:

HER HONOUR: So is your client saying that they only had two contacts from the council.

GRAHAM, MR: My friend might be able to invite in your Honour on that question. The difficulty with establishing the exact number of contacts is that there were multiple people involved in dealing with the council on this issue. There was the individual real estate agent who's shown on the sign and there was the director as well, so I haven't been able to pin that down but there were multiple contacts.

HER HONOUR: It's accepted that there were multiple contacts?

GRAHAM, MR: That's right.

HER HONOUR: Okay, thank you. I've heard what has been said by the prosecution and by Mr Graham in relation to this matter ... and it's also accepted that there has been multiple contact by the city with the estate agent which did not result in the immediate removal of the sign as required in the resulting proceedings today.

44 Counsel for the appellant argued that the appellant only accepted that there were multiple contacts, and did not accept that there were multiple contacts that did not result in the immediate removal of the sign. There is no merit in this ground. The parties agreed the sign was not removed until August, and the appellant accepted that multiple contacts were made before then. It follows that the appellant accepted that there had been multiple contacts that did not result in the immediate removal of the sign.

45 I granted leave to appeal on the first and third grounds, leave having already been granted in respect of the second ground. I upheld the appeal on the first and second grounds, set aside the fine of $50,000 and imposed a new fine of $5,000, and ordered the respondent to pay the appellant's costs, to be taxed if not agreed. Finally, I ordered that the respondent have a certificate under the Suitors' Fund Act 1964 (WA) in respect of those costs.