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DPP (Vic) v O'Brien

DPP (Vic) v O'Brien

Case [2021] WASCA 27 17 February 2021

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   JOHNSON -v- VANDER SANDEN [2021] WASCA 27
CORAM:   QUINLAN CJ
BUSS P
MAZZA JA

HEARD:   4 NOVEMBER 2020
DELIVERED          :   17 FEBRUARY 2021
FILE NO/S:   CACR 150 of 2020
BETWEEN:   DAVID JOHNSON
Appellant
AND
ASHER FAYE VANDER SANDEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HILL J
File Number            :   SJA 1064 of 2020

Catchwords:

Criminal law – Appeal against sentence – Failure to comply with a direction under Emergency Management Act2005 – COVID-19 pandemic – Whether court required to impose sentence of imprisonment greater than 6 months – Whether suspended imprisonment may be imposed for 6 months or less

Legislation:

Emergency Management Act 2005 (WA), s 86
Sentencing Act 1995 (WA), s 6, s 39, s 76, s 77, s 80, s 86
Sentencing Legislation Amendment Act 2004 (WA), s 4
Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 33(3)

Result:

Leave to appeal refused on grounds 1, 2 and 3
Leave to appeal granted on ground 4
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	A L Forrester SC and L M Fox SC
Respondent	:	S B Watters

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Hammond Legal

Cases referred to in decision:

Almonte v Beswick [2013] WASC 207
Casotti v Pickering [2013] WASC 174
Collins v The State of Western Australia [2007] WASCA 108
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Duong v State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
Latham v The Queen [2000] WASCA 338; (2000) 117 A Crim R 74
Nikora v The State of Western Australia [2018] WASCA 235
SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Vander Sanden v Johnson [2020] WASC 331
Vickery v McAlinden [2017] WASC 224

Table of Contents

Introduction and summary

Background facts

Proceedings before the learned magistrate

Appeal before Justice Hill

Grounds of appeal

Statutory context

Grounds 1, 2 and 3 – is s 86 irrelevant to the type of sentence that may be imposed?

Ground 4 – does the prohibition in s 86 apply to suspended imprisonment?

Conclusion

JUDGMENT OF THE COURT:

Introduction and summary

This is a State appeal against the decision of Hill J, in which her Honour allowed the respondent's appeal against the sentence imposed upon her in the Magistrates Court for an offence of failing to comply with a direction given under the Emergency Management Act 2005 (WA).[1] The particular direction, the subject of the charge, was the Quarantine (Closing the Border) Directions made under the Emergency Management Act in response to the COVID‑19 pandemic.
[1] See Emergency Management Act 2005 (WA) (Emergency Management Act), s 86.
The public interest underlying the Quarantine (Closing the Border) Directions is obvious and requires…

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 DPP (Vic) v O'Brien

Details

AGLC: DPP (Vic) v O'Brien [2021] WASCA 27
Case: [2021] WASCA 27
Decision Date

CaseChat Overview and Summary

This appeal concerns the imposition of a sentence on a respondent for an offence of failing to comply with a direction given under the Emergency Management Act 2005 (WA) in response to the COVID-19 pandemic. The respondent had been granted an approval to enter Western Australia from Victoria, where she had been for approximately one month visiting and assisting her sister who was unwell. On her arrival back into Western Australia, the respondent was required to comply with the terms or conditions of the approval, including a quarantine direction. The approval included a requirement that the respondent quarantine for 14 days at a quarantine centre at her own expense. The respondent was found to have failed to comply with the direction and was charged with the offence. The respondent pleaded guilty at the earliest opportunity. The learned magistrate sentenced the respondent to immediate imprisonment for 6 months and 1 day, but the respondent appealed against that sentence on the basis that it was manifestly excessive and that the magistrate had failed to consider whether the sentence of imprisonment should be wholly or partly suspended. The appeal judge allowed the appeal, resentenced the respondent to a community based order and the appellant, who was represented by the Director of Public Prosecutions in the appeal, appealed to this Court. The appellant submitted that the prohibition in s 86 of the Sentencing Act 1995 (WA) on the imposition of terms of imprisonment of 6 months or less was irrelevant to the assessment of whether the sentence was manifestly excessive, because the prohibition did not inform consideration of the type of sentence that may be imposed. The appellant also submitted that the prohibition in s 86 did not apply to a term of suspended imprisonment. The appeal must be dismissed. Leave to appeal was refused in relation to grounds 1, 2 and 3 of the appeal. Properly construed, s 86 does not operate so as to require a court to impose a minimum sentence of 6 months and 1 day imprisonment where the application of the law, and all relevant sentencing principles, would result in a sentence of 6 months or less. On the contrary, the effect of s 86 is that, subject to the express exceptions in the section itself, unless, applying all relevant sentencing principles, a sentence of at least 6 months and 1 day is appropriate in all the circumstances, imprisonment is not an available sentencing option. The prohibition in s 86 of the Sentencing Act applies to the imposition of a term of suspended imprisonment. That is, subject to the express exceptions in s 86, a court must not impose a term of suspended imprisonment of 6 months or less.

Orders