AAN v Butterfield
[2021] WASC 228
•13 JULY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: AAN -v- BUTTERFIELD [2021] WASC 228
CORAM: TOTTLE J
HEARD: 28 APRIL 2021
DELIVERED : 28 APRIL 2021
PUBLISHED : 13 JULY 2021
FILE NO/S: SJA 1015 of 2021
BETWEEN: AAN
Appellant
AND
ROBERT LESLIE BUTTERFIELD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: CHIEF MAGISTRATE S HEATH
File Number : PE 3347 of 2021
Catchwords:
Criminal law - Appeal against sentence - Miscarriage of justice - Failure to comply with direction under Emergency Management Act 2005 - COVID-19 pandemic - Where magistrate failed to draw to the attention of the unrepresented appellant that he was considering imposing a period of imprisonment - Appeal allowed
Legislation:
Emergency Management Act 2005 (WA), s 3, s 67, s 70, s 72A, s 86
Emergency Management Amendment (COVID-19 Response) Act 2020 (WA), s 13
Sentencing Act 1995 (WA), s 9AA, s 62, s 67
Criminal Appeals Act 2004 (WA), s 14
Result:
Leave to appeal granted on ground 3
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | S Rafferty |
| Respondent | : | K E Ellson |
Solicitors:
| Appellant | : | David Manera |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Cooling v Steel (1971) 2 SASR 249
Crocker v Vinicombe [2019] WASC 416
Harding v The State of Western Australia [2015] WASCA 27
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Wood v Marsh [2003] WASCA 95
TOTTLE J:
Introduction
On 3 March 2021 the appellant was convicted on his plea of guilty to one charge of failing to comply with a direction given under s 67, s 70 and s 72A of the Emergency Management Act 2005 (WA) (EMA). The appellant was sentenced to a term of imprisonment of 7 months with 2 months to be served immediately and 5 months suspended for 12 months.
The appellant applied for leave to appeal against the sentence imposed on him. On 28 April 2021 I heard the appeal. At the conclusion of the hearing I made the following orders:
(1)Leave to appeal be granted in respect of ground 3 of the amended appeal notice;
(2)The appeal be allowed;
(3)The sentence imposed by the magistrate on 3 March 2021 be set aside;
(4)The appellant be sentenced to a Community Based Order for a period of six months, with a community service requirement of 60 hours; and
(5)A spent conviction order be made in respect of the conviction entered on 3 March 2021.
I gave brief reasons for my decision and said that more detailed reasons would follow. These are those reasons.
Background
On 29 December 2020, the appellant arrived at Perth airport on an incoming flight from Victoria.
On 31 December 2020, the State Emergency Co-ordinator signed the Victorian Outbreak Recently Arrived Travellers Self-Quarantine Directions 2020, requiring persons travelling from, or having been in Victoria between 21 December 2020 and 31 December 2020 to quarantine immediately.
The appellant received a text message from the WA Police advising him that he was required to self-quarantine at a property in the Perth suburb of Ardross for 14 days from 29 December 2020. On 3 January 2021, the police telephoned the appellant with the details of his required self-quarantine period.
On 10 January 2021, 13 days into the appellant's self-quarantine period, police officers attended the address in Ardross and the appellant was not present. The appellant was contacted by a family member and returned to the address a short time later.
The appellant was interviewed by a police officer wearing a body-worn camera and he admitted that he had breached a self-quarantine direction by attending a friend's house earlier in the morning. The appellant had travelled to and from the friend's house in a ridesharing service. The appellant did not advise the drivers that he was subject to a self-quarantine direction and he did not wear a face mask.
The appellant had been tested for COVID-19 on 9 January 2021, however, at the time of the offending, he did not know the results of the test.
Legislative Scheme
The EMA was enacted in 2005 to 'provide for prompt and coordinated organisation of emergency management in the State, and for related purposes'.[1]
[1] Emergency Management Act 2005 (WA), Long Title.
Section 86(1) of the EMA provides:
A person given a direction under section 47, 67, 70, 71, 72A or 75(1)(i) must comply with the direction.
Penalty:
(a)imprisonment for 12 months or a fine of $50 000;
(b)for each separate and further offence committed by the person under the Interpretation Act 1984 section 71, a fine of $5 000.
In 2020, following the outbreak of the global COVID-19 pandemic, the Act was amended by the Emergency Management Amendment (COVID-19 Response) Act 2020 (WA). By s 13 of the amending legislation, s 86(1)(a) was amended to include the penalty of a term of imprisonment for 12 months.
This case is concerned with directions given under ss 67, 70 and 72A of the EMA. Relevantly s 67 allows a hazard management officer or authorised officer to direct, or by direction prohibit a person from movement within, into, out of or around an emergency area.
Section 70 provides that a hazard management officer or authorised officer may direct 'any person who has been exposed, or any class of person who may have been exposed, to a hazardous substance':
(a)to remain in an area specified by the officer for such period as is specified by the officer;
(b)to remain quarantined from other persons for such period, and in such reasonable manner, as is specified by the officer.
'Hazardous substance' includes relevantly a biological substance, or any other substance, that is capable of causing loss of life, injury to a person, or damage to the health of a person.[2]
[2] Emergency Management Act 2005 (WA) s 3.
Section 72A(2) provides:
For the purposes of emergency management during an emergency situation or state of emergency, a hazard management officer or authorised officer may take, or direct a person or a class of person to take, any action that the officer considers is reasonably necessary to prevent, control or abate risks associated with the emergency.
It was not in dispute in this court that the appellant was subject to directions under the Act requiring him to self-quarantine. The respondent relied on the Victorian Outbreak Recently Arrived Travellers Self-Quarantine Directions 2020.
The sentencing hearing and the magistrate’s sentencing remarks
The appellant submitted an endorsed plea of guilty by post. Unsurprisingly, given the nature of the offence, he was summonsed to appear for sentencing. At the beginning of the sentencing hearing, before the material facts were read, the magistrate asked if the appellant wished to obtain legal advice. The appellant said he did not wish to do so.
The material facts were then read and after the facts had been read, the magistrate asked the appellant why he had breached quarantine and the appellant replied that it was to see a girl. The magistrate pointed out to the appellant the risks that his conduct had created for those with whom he had come into contact. The appellant started to provide some further information, but the transcript suggests that the magistrate interrupted the appellant and then began his sentencing remarks in the course of which he said as follows:[3]
...Western Australia has been very lucky that there has not been many concerns in relation to COVID within the community, but that has, to a large part, been a result of the strict border requirements and the strict quarantine requirements of people coming from places that are regarded as hotspots, being areas where there have been outbreaks of the COVID-19, and, in particular, where they have been community outbreaks.
You were well aware of the quarantine requirement. You had received a text and then a telephone call confirming it, and yet you chose to visit a friend in a very selfish manner, placing your friend, the Uber drivers and the general Western Australian community at great risk. In my view, a term of imprisonment is the only appropriate sentence for people who act so selfishly when we deal with such a dangerous virus.
One only has to look at the number of deaths and the widespread harm that has occurred both in deaths and to the economy in other countries around the world, where they have not been able to contain the spread of the virus by the imposition of measures such as this. Notwithstanding your lack of record and your early plea, in my view, a term of imprisonment is required, but that term can be partially suspended.
I am going to sentence you to 7 months' imprisonment, but I will suspend 5 months of that, so after serving 2 months of imprisonment, you will be suspended - you will be released. The remaining 5 months will be suspended for a year, so that if you were to commit any further offence during the following year, you would then have to serve that five months. Now you will need to stand down in custody.
[3] ts, 3 March 2021, 3 - 4.
The appellant spent two days in custody before being granted bail on 5 March 2021.
Grounds of appeal
As amended at the commencement of the hearing, the appellant relied in his appeal notice on three grounds expressed as follows:
(1)that the sentence was manifestly excessive, having regard to all relevant factors;
(2)that the magistrate erred in law in failing to specifically identify the fact of the discount for the plea of guilty and further, by failing to specify the amount of discount granted for the plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA); and
(3)that the magistrate erred in law in failing to draw to the attention of the unrepresented appellant that he was considering imposing a period of imprisonment and offering the appellant the opportunity to seek legal advice before imposing such a period of imprisonment.
The respondent did not oppose the grant of leave to appeal in respect of these grounds. The respondent contended that the sentence imposed was not manifestly excessive and argued that, having regard to the seriousness of the offence and matters of general and personal deterrence and the appellant's personal circumstances, a term of imprisonment in the order of 7 months, partially to be served immediately and partially suspended, was open to the magistrate.
In respect of ground 2, the respondent conceded that the magistrate did not comply with s 9AA of the Sentencing Act because he failed to identify the reduction in sentence afforded to the appellant by reason of his guilty plea and thus the magistrate made an error of law. The respondent argued that the failure to identify a reduction in the sentence did not give rise to an inference that the magistrate did not reduce the sentence imposed on the appellant to take account of the guilty plea.
In respect of ground 3, the respondent accepted that the magistrate erred in failing to inform the appellant of the seriousness of the charge and the penalties which may be imposed including the risk of being sentenced to a term of imprisonment. The respondent conceded that what occurred for the appellant amounted to a failure to adopt the approach approved by this court in Wood v Marsh[4] and constituted a procedural error amounting to a material express error of law. The respondent contended, however, that the magistrate's error did not give rise to a substantial miscarriage of justice and submited the court should dismiss the appeal under s 14(2) of the Criminal Appeals Act 2004 (WA).
[4] Wood v Marsh [2003] WASCA 95 [35].
As I will explain, it was only necessary to deal with ground 3.
Ground 3
In the judgment of Malcolm CJ in Wood v Marsh, (with which Murray and Anderson JJ agreed), his Honour approved a number of observations made by Wells J in Cooling v Steel[5] about the approach to be taken to unrepresented persons who plead guilty to an offence:[6]
… the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation. If the question of bail arises, the defendant should be made clearly aware of what bail is and that he can apply for bail, and of what matters a court takes into account when an application for bail is made; he should also be told that he can make representations in support of his application.
If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed - especially where the court has the power to impose disqualification from holding or obtaining a driver's licence, to make an order to pay compensation, to direct a forfeiture of property, or to record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath (more especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material for the consideration of the court. Before the facts are placed before the court, the defendant should be informed that he is entitled to dispute or comment upon the facts alleged by the prosecutor, (including any previous convictions alleged); if the defendant proceeds to dispute any of those facts the court should bear in mind the principles enunciated in Law v Deed (1970) SASR 374 and R v Maitland (1963) SASR 332, and, in any event, be quick to recognize any denials or explanations by the defendant that suggest that he should not have pleaded guilty. If, after hearing the defendant, the court feels that there are relevant areas that he has not covered, he should be invited to cover them. If the court is of the opinion that the plea of guilty should not have been entered, the court should ask the defendant whether he adheres to his challenge of the material facts or to his explanation (as the case may be) that has led the court to its opinion as to the plea, and if the defendant does so adhere, a plea of not guilty should be recorded.
In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.
[5] Cooling v Steel (1971) 2 SASR 249.
[6] Cooling v Steel 251; Wood v Marsh [35].
The approach approved by the court in Wood v Marsh requires a court to ensure that an unrepresented person who appears before it and pleads guilty is appraised of their rights and is told of (at least):
(1)the ability to seek legal advice and representation;
(2)the right to seek a reasonable adjournment to obtain that advice or representation;
(3)where relevant, the seriousness of the charge and of the penalties that may be imposed, especially where there is a risk of being sentenced to a term of imprisonment;
(4)the ability to dispute or comment upon the facts alleged by the prosecutor; and
(5)the ability to put before the court any matters of mitigation.
It may be accepted that, in this case, the magistrate afforded the appellant an opportunity to seek legal advice and representation and it may also be accepted that the magistrate invited the appellant to comment on the material facts read by the prosecutor. Unfortunately, the magistrate did not inform the appellant of the seriousness of the offence with which he had been charged and the possibility that a term of imprisonment might be imposed. Nor was the appellant informed of his right to put matters before the court in mitigation.
It is relevant that the appellant was 20 years old at the time of sentencing and had no prior criminal convictions. It may be inferred from the appellant's attempt to plead guilty by post and by his attendance at court without representation or support, that he had no appreciation that he was likely to be sentenced to a term of imprisonment. When he was sentenced, there were only a very limited number of examples of other people being convicted and sentenced for similar offences. I am satisfied that the situation in which the appellant found himself was not one in which he had an appreciation either of the seriousness with which the court regarded his offending or the possibility that he would be sentenced to a term of imprisonment.
Ground 3 has been made out. The respondent accepted that the error was a material express error. The error was capable of affecting the sentence imposed and it is not for this court to assess whether and to what degree the error influenced the outcome - see the observations of Mazza JA with whom Hall J agreed in Harding v The State of Western Australia[7], at [73] - [75], followed and applied by Fiannaca J in the context of an appeal to a single judge under pt 2 of the Criminal Appeals Act 2004 (WA) in Crocker v Vinicombe:[8]
However, as I have said, in light of the authorities discussed above, there is a question concerning the application of the proviso when an error is found to have been material to the exercise of the sentencing discretion. The answer matters, because if the finding of material error means that the court must exercise the discretion afresh, the question is not whether it was open to the magistrate to impose the period of disqualification that was imposed, but whether that period accords with the period the appellate court determines to be appropriate (i.e. ought to have been imposed) on a proper application of the law. If the appellate court would impose the same period (or, potentially, a longer period), then no substantial miscarriage of justice has occurred, and the appeal would be dismissed. If, on the other hand, the appellate court concludes that a lesser period is appropriate in the circumstances of the case, it could not be said there has been no substantial miscarriage of justice. In that case, the appeal would be allowed and the appeal court would make a new disqualification order.
I am satisfied, in light of the decisions in Kentwell, Harding, Ninyette v Holmes and Winmar v Clark, that where a material error has been established in an appeal under pt 2, the appellate court must exercise the sentencing discretion afresh, and [whether a substantial miscarriage of justice occurred for the purposes of s 14(2) of the Criminal Appeals Act] will be considered only at that stage, in the manner I have outlined in the preceding paragraph. In that context, in accordance with s 14(5) of the Criminal Appeals Act, the court would have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard. (emphasis added)
[7] Harding v The State of Western Australia [2015] WASCA 27.
[8] Crocker v Vinicombe [2019] WASC 416 [58] - [59] (citations omitted).
The magistrate made an express error of law, and the error was material. It would only have been if, on the independent exercise of the sentencing discretion that I determined the same sentence were appropriate, that no substantial miscarriage of justice will have occurred.[9] My consideration of this matter was assisted by materials which were not placed before the magistrate and whilst those materials were not of themselves of decisive significance, taking all relevant matters into account I am satisfied that a more lenient sentence than that imposed by the magistrate is appropriate.
[9] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42] (French CJ, Hayne, Bell & Keane JJ).
On this basis I granted the appellant leave to appeal in respect of ground 3, allowed the appeal on that ground and proceeded to resentence the appellant.
Resentencing
This court had all the materials necessary to resentence the appellant. After the appellant was sentenced by the magistrate, he spent two days in custody before being granted bail pending the outcome of this appeal.
I will not repeat what I have written about the circumstances of the offence. The appellant’s relevant mitigating factors can be summarised as follows:
(1)he was young, 20 years old at the time of the offending;
(2)he was remorseful;
(3)he had no prior convictions
(4)he was of prior good character, as evidenced by the character references provided to the court; and
(5)he entered a plea of guilty at the first opportunity.
The seriousness of the offending, when considered in the context of a global pandemic, was significant, and it was aggravated by the selfish nature of the appellant's behaviour and the risk that he created for the community.
The offence with which the appellant was convicted is an offence in respect of which the courts have yet to determine standards of sentencing. The maximum sentence that can be imposed, however, is a term of imprisonment of 12 months, or alternatively a fine of $50,000.
This was a situation where the requirement for general deterrence was a very significant factor. That being so, it will seldom be the case that imprisonment will not be considered as a potential sentencing disposition.
The requirement for personal deterrence was of less significance, as having regard to the appellant’s personal history and references, it appeared very unlikely that the appellant would commit an offence again. Two character references were provided. Both referees had been informed of the circumstances of the offending. Both referees spoke highly of the appellant and one of the referees, a director of his employer, spoke of the appellant’s responsible attitude towards his work.
Having regard to all of the relevant circumstances, including that the appellant had spent two days in custody I determined that the appropriate disposition was that the appellant be sentenced to a 6 month Community Based Order with a community service requirement of 60 hours.
Having regard to the appellant’s previous good character, his young age, the fact that it was very unlikely that the appellant would offend again and the potential for a conviction to affect adversely his chosen career as a commercial airline pilot, I concluded that I should make a spent conviction order. These reasons have been anonymised to ensure that the appellant is not deprived of the benefit of the spent conviction order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle
13 JULY 2021
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