AAN v Butterfield - [2021] WASC 228

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AAN v Butterfield

Details

AGLC: AAN v Butterfield [2021] WASC 228
Case: [2021] WASC 228
Decision Date: 13 JULY 2021

CaseChat Overview and Summary

The case of AAN v Butterfield involved an appeal against a sentence imposed by a magistrate. The appellant, AAN, was found to have contravened a direction issued under the Emergency Management Act 2005 during the COVID-19 pandemic. The nature of the dispute was centred on whether the sentence imposed was appropriate and whether the magistrate adequately considered the circumstances of the appellant, who was unrepresented at the time of sentencing. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the magistrate had erred in imposing a period of imprisonment without first ensuring that the appellant was fully aware of the consequences of such a sentence. The court was required to consider whether the magistrate had failed to comply with procedural requirements and, if so, whether this amounted to a miscarriage of justice warranting an appeal. The court also needed to assess whether the sentence imposed was appropriate in the circumstances, taking into account the appellant's unrepresented status and the public health context of the offence.

The Supreme Court found that the magistrate had indeed failed to draw to the attention of the unrepresented appellant that he was considering imposing a period of imprisonment. The court held that this failure constituted a significant procedural error, particularly given the appellant's unrepresented status and the potential consequences of imprisonment during the COVID-19 pandemic. The court concluded that the magistrate's oversight amounted to a miscarriage of justice and allowed the appeal. Consequently, the sentence imposed by the magistrate was set aside, and the matter was remitted to the Magistrates' Court for re-sentencing.

In light of the findings, the Supreme Court ordered that the appellant be given the opportunity to be legally represented at the re-sentencing hearing. The court also directed that the re-sentencing process be conducted in a manner that ensures full compliance with legal and procedural requirements, including adequate communication with the appellant regarding the potential consequences of the sentence.

Orders