Gunn v Reardon and Rogers
[2022] TASSC 10
•21 February 2022
[2022] TASSC 10
COURT: SUPREME COURT OF TASMANIA
CITATION: Gunn v Reardon and Rogers [2022] TASSC 10
PARTIES: GUNN, Timothy Andrew
v
REARDON, Sergeant Robert
ROGERS, Sergeant Gregory
FILE NO: LCA 3206/2021
DELIVERED ON: 21 February 2022
DELIVERED AT: Hobart
HEARING DATE: 16 February 2022
JUDGMENT OF: Estcourt J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether sentences manifestly excessive – Multiple breaches of family violence order and three breaches of COVID-19 pandemic public health requirements – Two cumulative sentences totalling ten months' imprisonment with four months suspended – Matters to be taken into account when sentencing for breach of public health requirements – Sentence not manifestly excessive – Motion to review refused.
Emergency Management Act 2006 (Tas), s 60.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Appellant: P Monk
Respondent: E Bill
Solicitors:
Appellant: Tasmania Legal Aid
Respondent: Director of Public Prosecutions
Judgment Number: [2022] TASSC 10
Number of paragraphs: 91
Serial No 10/2022
File No LCA 3206/2021
TIMOTHY ANDREW GUNN v SERGEANT ROBERT REARDON
and SERGEANT GREGORY ROGERS
REASONS FOR JUDGMENT
The application
This is a motion by the applicant, Timothy Andrew Gunn, to review two cumulative sentences of imprisonment imposed by a magistrate, S Mollard, on 21 December 2021.
Complaints 8281/2021, 8282/2021, 9075/2021, and 9548/2021 all alleged breaches of a Nationally Recognised Domestic Violence Order, with 17 total breaches alleged across those complaints. On his pleas of guilty to those complaints the applicant was sentenced to five months' imprisonment, with two months of that sentence being suspended.
Complaint 8280/2021 alleged one count of knowingly providing false information and failing to comply with lawful requirement of an emergency management worker, and complaint 91195/2021 alleged one count of failure to comply with lawful requirement of an emergency management worker. On his pleas of guilty to those complaints, the applicant was sentenced to a cumulative term of imprisonment of five months with two months of that sentence being suspended.
The "public health" complaints were as follows:
· Failing to comply with a lawful requirement or direction of an emergency management worker by entering Tasmania on 11 October 2021 when prohibited from doing so by the directions of the Deputy State Controller, contrary to s 60(c) of the Emergency Management Act 2006: (Complaint 91195/2021).
· Knowingly providing false or misleading information by stating to a biosecurity officer on arrival to Hobart Airport on 11 October 2021 that he had come from Queensland contrary to s 60(d) of the Emergency Management Act: (Complaint 8280/2021 charge 1).
· Failing to comply with a lawful requirement or direction of an emergency management worker, namely, a direction to remain in hotel quarantine for 14 days, by leaving the hotel on 11 October 2021 contrary to s 60(c) of the Emergency Management Act: (Complaint 8280/2021 charge 2).
· Making a false or misleading statement to a delegate of the Director of Public Health, namely falsely stating that he had remained at a premises at Bridgewater from 11 October to 12 October 2021, and was only in the company of his partner contrary to s 193(a) of the Public Health Act 1997: (Complaint 9549/2021 charge 1 as amended).
As will be seen, the latter offence is not the subject of the notice to review.
The applicant contends that the sentences were manifestly excessive in all of the circumstances.
The role of this Court in considering the question of manifest excess is well established. Magistrates have a very wide sentencing discretion, and an appellate court must not interfere unless a material error is shown (Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 per Kirby J at [57]-[60]). It must be shown that the sentence imposed is "unreasonable or plainly unjust" (Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1 per Pearce J at [8], citing House v The King (1936) 55 CLR 499 at 505). The Court has no charter to "tinker" with sentences imposed (Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]).
An appellate court only sits to rectify a genuine error (Dinsdale v The Queen (above)) and that where, as here, no specific error is alleged the court must be persuaded that the sentence imposed is "unreasonable or plainly unjust" (House v The King (above)). This requires something beyond being too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of judicial discretion (Bresnehan v The Queen (1992) 1 Tas R 234).
The offending
On 21 April 2021, at the Albury Local Court the applicant was issued with an Apprehended Domestic Violence Order (ADVO), prohibiting any contact with Billie Dea Welsford. That order is recognised and enforceable in Tasmania.
At that time Public Health Directions were in place in Tasmania as a result of the management of the COVID-19 pandemic, and those directions restricted the entry of persons into the State from certain jurisdictions, depending on whether those jurisdictions were deemed to be high, medium or low-risk.
New South Wales was deemed by Tasmania to be a high-risk jurisdiction, meaning that entry into Tasmania was not permitted without prior approval being granted. Persons seeking entry into Tasmania from a high-risk jurisdiction were required to apply using the Good-2-Go (G2G) pass application. Persons seeking entry from low-risk jurisdictions were required to complete a Tas E-Travel Pass. Neither the G2G or E-Travel passes have statutory force, but they were a mechanism for assisting entry to Tasmania.
The applicant applied for a G2G Pass on 28 September, which was rejected on 29 September. He applied for a second G2G Pass on 1 October, and in that application he gave the impression that he was returning home to Tasmania – which was not true, but was not the subject of any complaint. That application was also rejected.
On 10 October, the applicant completed an E-Travel Pass application which contained information that he was travelling from Queensland (which he was not, but again that is not the subject of any complaint).
On 11 October, the applicant travelled from Albury in New South Wales to Wodonga in Victoria, and then by train to Melbourne.
At approximately 8.40pm on 11 October, the applicant arrived in Tasmania on a flight from Melbourne. At the time of entry, he was not an authorised person allowed to enter Tasmania under directions issued by the Emergency Management Act on 24 September 2021. This unauthorised entry into Tasmania was the subject of complaint 91195/2021.
Upon entry, the applicant presented to a biosecurity support officer, who noted that he appeared nervous, was talking fast, visibly shaking, twitching and appeared to be under the influence of drugs or alcohol. He presented his E-Travel Pass to the officer, who noted that the pass stated he had only been in Queensland, whereas his flight had arrived from Melbourne. When asked about this, the applicant stated that he had travelled from Queensland that day and had not left Melbourne Airport. This false statement was the subject of count 1 on complaint 8280/2021. The applicant was asked for proof as to how he arrived in Victoria from Queensland, and he stated that his girlfriend had booked the flight and he would phone her to ask.
The officer asked for additional information, and was informed by telephone of the two failed G2G Pass applications. Police were alerted, and spoke with the applicant about his movements. At this point, the applicant informed police about his true movements, that is, that he had been in Albury and had travelled from Wodonga to Melbourne. He made admissions to falsely advising the biosecurity officer that he had been in Queensland. This admission came at 8.47pm, shortly after the flight arrived. Ms Welsford was at the airport, and the applicant was captured on body-worn video camera saying "hey babe" to Ms Welsford, which was the subject of count 1 on complaint 8281/2021.
The applicant was advised that he would need to enter hotel quarantine as he had arrived from a high-risk jurisdiction. He made comments to the effect that he was not happy with this. He was advised that he would be completing quarantine at the Travelodge in Hobart, that he was not to leave the hotel unless authorised and he was warned that if he left the hotel he faced "fines and possibly imprisonment".
Whilst being transported to the hotel, the applicant told police he was "pissed off" about having to quarantine, that he would be talking to someone about "the situation" and that he should not have to quarantine because he had not come from a "hotspot". The bus driver transporting the applicant overheard a telephone conversation between the applicant and someone referred to as "babe" advising that he was not going to be in quarantine for long and to meet him there [at the hotel].
The applicant arrived at the Travelodge at 9.20pm. Sometime after 9.30pm he left the hotel without being authorised. This was the subject of count 2 on complaint 8280/2021. His absence was noticed the following day.
The applicant attended Woolworths at Bridgewater in the company of Ms Welsford in the afternoon of 12 October, which was the subject of count 2 on complaint 8281/2021.
On 12 October, at a time subsequent to the trip to Woolworths, the applicant was located by police at the home of Ms Welsford. Ms Welsford was present when he was arrested, and him being in company with her on 12 October is the subject of count 3 on complaint 8281/2021.
He was arrested and transported back to the Travelodge hotel. On the way there the applicant told police that he "rang the health line last night and they said I shouldn't have to quarantine. I just took that and, yeah, ran with it. I shouldn't have left." A COVID-19 test was taken at that stage which returned an inconclusive result. The applicant was retested the following day and returned a positive result. He was then transported to the Fountainside Medi-hotel to complete the remainder of his quarantine.
The applicant's conduct after that point was the subject of complaint 9549/2021 and is not the subject of this application to review as it was an offence which attracted only a monetary penalty. It related to the provision of false information to a nurse practitioner, Ms McCann, and a failure to co-operate with contact tracers.
Whilst in quarantine, the applicant contacted Ms Welsford by phone on numerous occasions. These phone calls and messages were the subject of complaint 8282/2021 as to 245 contacts between 13 October and 17 October 2021 and complaint 9075/2021 as to 265 contacts between 18 October and 26 October 2021.
These contacts were mostly short, and some so short they would more properly be described as attempted contacts. There were some longer phone calls. It was not alleged that any phone calls or contact was abusive threatening or harmful to Ms Welsford, who was described by the prosecutor as a "willing party" to the breaches.
The applicant was arrested on 26 October, after completing his hotel quarantine. He was charged and did not make an application for bail. On 28 October, he made a phone call to a third party through the prison phone system. Ms Welsford answered, and the two had a short, unremarkable conversation. This formed the basis of complaint 9548/2021.
The respondent accepts the above outline of the facts of this matter as narrated on behalf of the applicant, with the following qualifications:
· The applicant's first application for a "Good-2-Go" pass on 28 September 2021 contained "a number of false or misleading bits of information."
· After the applicant's falsehood had been detected at the Hobart Airport, and he was advised by police that he would have to attend hotel quarantine, he continued to maintain to police the false impression that he had previously been living in Tasmania.
· The applicant was located by police at an address in Bridgewater on 12 October 2021. He initially denied who he was, but then identified himself.
· After his return to quarantine, it was explained to the applicant that because of a "weak positive" test, information was needed about who he might have been in contact with. He responded that he was "Not really in the mood for this shit" and terminated the call.
· On the following day, 13 October 2021, the applicant was advised of the conclusive positive test. He told contact tracers that he had stayed with his partner at her residence, and had not gone anywhere – not to the corner shop, bottle shop nor to obtain cigarettes. He declined to provide her address and stated that no-one else was at the house. These false statements were the subject of the charge on complaint 9549/2021 (not the subject of the notice to review).
· On 28 October 2021 the applicant made a phone call from Risdon Prison to a third party, and spoke to Ms Welsford in breach of the Nationally Recognised Domestic Violence Order. From that point he was denied access to the phone number and the offending ceased.
The plea in mitigation before the magistrate
A plea in mitigation was made to the learned magistrate on behalf of the applicant. It directed attention to the following matters.
The applicant was aged 31 and grew up in Albury in New South Wales. He had an unstable childhood involving foster care and physical abuse.
He left school at age 15 and began a bricklaying apprenticeship, subsequently taking up a trade in concreting. He had issues with drugs on and off, with his drug use escalating at the end of 2019 when a long-term relationship of eight years ended. His drug use became problematic as a means to cope with that stressor, and he lost his job. He found further employment. However this came to an end at the start of the COVID-19 pandemic in early 2020.
The loss of stabilising factors such as a relationship and employment, coupled with escalating drug use, resulted in the applicant serving his first term of imprisonment in 2021, in New South Wales.
At some point during 2020, he formed a new relationship with Ms Welsford. This relationship was fraught from April 2021 when the applicant was charged with offending against Ms Welsford, and served with a ADVO and was sentenced to a term of imprisonment.
Despite the existence of that order, both parties wanted their relationship to continue, and contact resumed after the applicant's release from custody. Upon his release from custody, the applicant "had nothing and nobody to support him", having ruined his relationship with his family due to his drug use. Ms Welsford made it clear that she wished to resume the relationship in Tasmania, and the applicant then made arrangements to travel to Tasmania.
The applicant asserted that he was confused about the entry requirements into Tasmania, as New South Wales and Tasmania each had separate definitions of high and low-risk. In New South Wales, Albury was considered low-risk whereas in Tasmania, all of New South Wales was considered to be high-risk.
The applicant accepted that he was not an authorised person to enter Tasmania. He accepted that he told the biosecurity officer that he had been in Queensland and that was not true. However, this lie was short lived, and he made admissions to police at the airport.
Despite what he was told by the police, he still held a belief that there had been some sort of mistake, and that he had in fact come from a low-risk area. This was consistent with comments he made en route to the hotel. He accepted however, "with the benefit of hindsight" that this was clearly not correct.
He left the hotel via a fire exit. He was collected by Ms Welsford and returned to her house. He accepted that this was in breach of the ADVO.
He did not know that he was COVID positive when he absconded from the hotel and was not displaying symptoms.
He accepted that throughout the quarantine period he contacted Ms Welsford daily. He was anxious and scared after being told he had tested positive for COVID. The contact between the two was consensual, Ms Welsford was a willing party to it and there was nothing remarkable about the contact, except that it was not permitted by virtue of the order.
Ms Welsford had lodged an application to vary the ADVO to permit contact, which was indicative of her stance on the relationship.
He entered early pleas of guilty and was remorseful for his conduct.
He had a limited criminal history, comprising of offences committed almost exclusively in 2020 and 2021 when he was at "rock bottom".
The applicant's submissions on the ADVO breaches
In relation to the breaches of the Nationally Recognised Domestic Violence Order, the applicant's counsel, Ms Monk, submits that the breaches are at the lower end of the scale. Whilst there were a large number of phone calls, the majority occurred in the context of the applicant phoning the protected party during his quarantine period. There was no abuse and no threats alleged, and it was stated in mitigation that the communication was "that which would generally be expected of two persons in a romantic relationship, with the obvious difference being that the communication was not permitted." It was not submitted to the Court that the applicant's breaches of the order had an actual or likely negative impact upon the complainant's safety, psychological wellbeing or interests.
Counsel for the applicant referred to Parker v Hall [2015] TASSC 60, where the respondent was found guilty of six breaches of a Police Family Violence Order or Interim Family Violence Order where the breaches were as follows:
· Breaching a PFVO on 25 December 2012 by telephoning the complainant and saying "Hi, it's me" which caused the complainant to hang up the phone.
· Breaching a PFVO on 29 December 2012 by leaving a letter for the complainant expressing affection for her and apologising for previous conduct.
· Breaching a PFVO on 16 January 2013 by approaching the complainant at Myrtle Park and by spending the night with her camping, something which was arranged by the complainant.
· Breaching a PFVO on 15 April 2013 by handing the complainant a letter expressing affection and a hope for reconciliation.
· Breaching an IFVO on 27 April, the day after a magistrate made the order in court, by approaching the complainant at a pre-arranged and consensual meeting in a carpark.
· Breaching an IFVO on 3 May 2013 by approaching the complainant at a pre-arranged meeting at her mother's house in the presence of a friend of the respondent, to discuss issues relating to jointly held property.
Counsel for the applicant noted that the respondent in that case was sentenced to an undertaking to be of good behaviour, without recording a conviction, pursuant to s 7(f) of the Sentencing Act 1997 and the prosecutor appealed against that sentence on the grounds of manifest inadequacy. On appeal, Wood J stated at [32] in relation to the nature of the breaches:
"They were committed with the compliance and agreement of the complainant. Of course, that is no justification for the breaches. However, it is a point of distinction with other offenders where there is no complicity and the offender knows that the contact made with the complainant is contrary to the wishes of the complainant."
Counsel for the applicant also pointed out that in Kelleher v Avery [2017] TASSC 14, Wood J said at [19] and [21]:
"19 The learned magistrate obviously and correctly held a stern view about breaches of family violence orders in general. Breaches of court orders which have as their purpose the protection of a complainant are always a matter of substance. Approaching breaches in this way counters any misconceptions by defendants that family violence orders need not be taken seriously, and reinforces the effectiveness of family violence orders, and ultimately the protection they afford complainants. However, there is a spectrum of seriousness in relation to breaches of family violence orders, and the gravity of a particular breach will turn on the nature of the conduct and the circumstances of the breach. In fixing a sentence the court is obliged to take into account the individual circumstances of each offender.
…
21 There are other aspects of this offending which distinguish it from more serious examples of this offence. The conduct amounting to the breaches was contrary to a prohibition on contacting the complainant, not other conditions such as a condition not to threaten, harass, abuse or assault her. The contact was indirect, rather than direct. The conduct was not abusive or threatening. While all breaches can be presumed to cause some level of stress to complainants, and are potentially harmful resulting from the undermining of a court order, in this case there was no specific harm attributed to the conduct."
Counsel submits that the same can be said in relation to the applicant. That is to say, whilst it is accepted that the consent of the complainant is not a factor that always militates in favour of a non-custodial penalty, that fact, coupled with the conduct itself not being of an abusive or threatening nature, ought to have led to a finding that the conduct was at the lower end of the scale.
Counsel also notes that the learned magistrate made comment on passing sentence about the existence of the applicant's prior convictions for breaching the ADVO in New South Wales, whereas no information was given to the magistrate by the prosecution about those breaches, and whether they were "consensual" breaches of a non-violent nature or of a different kind. Counsel submits in her written contentions:
"It is true that breaches of Family Violence Orders can be dealt with on a sliding scale in relation to the maximum penalties depending on the number of prior convictions, however this is not the determinative factor in sentencing. The gravity of a particular breach is dependent on the circumstances, and not on the existence of prior convictions simpliciter."
The applicant's submissions on the public health breaches
Counsel for the applicant submits that the charges against the applicant relating to breaches of public health directions regarding the COVID-19 pandemic may be summarised as, his entering Tasmania when not authorised to do so, his provision of false information to a biosecurity officer as to having travelled from Queensland, and his absconding from hotel quarantine when he had been lawfully directed to quarantine for 14 days.
Counsel for the applicant points out that there has not been appellate authority in Tasmania in relation to breaches of laws and directions related to the COVID-19 pandemic. The learned magistrate was referred to a number of authorities from Western Australia. The facts on each of the cases decided in that jurisdiction all differ greatly from one another and from the applicant's case, and counsel referred to them purely to extract any legal principles that have emerged.
In Johnson v Vander Sanden [2021] WASCA 27, Quinlan CJ, Buss P and Mazza JA said at [3]:
"The sentencing of persons under the Emergency Management Act, in times of emergency such as the COVID-19 pandemic, does not involve some special category of case in which the law is to be applied differently than in other times. The rule of law remains unaffected and the fundamental principles of the criminal law continue unaltered."
At first instance in Johnson v Vander Sanden [2020] WASC 331, Hill J said at [46]:
"The fact that the appellant ultimately tested negative to COVID-19 is not relevant to the assessment of the seriousness of the appellant's offending and, as such, not a mitigating factor. This is because the Directions seek to address the risk of COVID-19 being reintroduced into Western Australia, and how this risk can best be managed. The Directions are not solely aimed at the management of people who have the virus."
Thus, counsel for the applicant submits, the fact that the applicant ultimately tested positive for COVID-19 was not a determinative factor in the sentencing process, particularly noting that he was not aware of his positive status and was asymptomatic at the time of his entry to the State and his subsequent absconding from quarantine.
Whilst not asserted in the notice to review as a specific error, counsel notes that the learned sentencing magistrate observed when commenting on the interstate cases he had been referred to in sentencing submissions:
"The instant case lacks the mitigation and reasons for sympathy and leniency present in most of those cases, including those that, somewhat surprisingly, were dealt with quite harshly. The consequences here were greater, and the lockdown brought about through the defendant's behavior. I think imprisonment is the appropriate sentence to be imposed."
Counsel submits, on the basis of those comments, that a determinative factor in imposing the sentence of five months' imprisonment with two months suspended on the applicant, was the consequence of his offending, namely the lockdown that was imposed by the State of Tasmania.
However, she points out that before the learned magistrate, counsel for the prosecutor stated:
"I'm instructed that the provision by the defendant of misleading information to Ms McCann led to a significant increase in the work of public health officers engaged in contact tracing in relation to him. It also caused the Director of Public Health to impose a three-day lockdown in Southern Tasmania from 15th October 2021 and additional requirements in relation to the wearing of masks for seven days from that date."
But, she says, counsel for the prosecutor stated:
"What led to the lockdown, on my instructions, was not those lies or even his positive status. It was the fact … the lies and his general level of cooperation – and I make reference to him hanging up at one point - meant that the public health authorities couldn't be confident that he was telling the truth to them, and then the lockdown was imposed as a precautionary measure."
Thus, counsel for the applicant says, the prosecution made it clear that the precautionary lockdown was a result of misleading information provided to Ms McCann, a nurse who contacted the applicant after he tested positive to COVID-19, and his lack of co-operation with authorities after that positive test was recorded. Counsel then notes that the provision of that false information to Ms McCann was the subject of complaint 9459/2021, a complaint that is not the subject of this motion to review. That conduct on the part of the applicant was in breach of the Public Health Act 1997, and he was fined $1500.
It is submitted that the actions of the applicant which, led to the lockdown and other consequences, were limited to the conduct charged in complaint 9459/2021. The only matters for which the applicant could be sentenced to a term of imprisonment for the COVID-19 related conduct were entering Tasmania when not authorised, providing false information to the biosecurity officer at the airport, and absconding from hotel quarantine. And, counsel submits, none of those matters led to the precautionary lockdown (although it is accepted that had the applicant not absconded from hotel quarantine in the first place then there would have been no need for contact tracing).
Counsel for the applicant then submits in her written contentions:
"Noting that breaches of directions related to the COVID-19 Pandemic are not in a special category of offending, it is accepted that general deterrence was a factor that loomed large in the sentencing process. It is submitted that general deterrence could have been achieved by the imposition of a lesser penalty. In relation to personal deterrence, the consequences to the defendant of his offending were significant: he was immediately taken to quarantine, and immediately arrested at the conclusion of his quarantine period with no prospects of bail given he did not have ties to the State beyond Ms Welsford."
Counsel for the applicant next turned to some sentencing submissions, common to both sets of complaints. She noted that the applicant had pleaded guilty at an early opportunity but that the learned magistrate did not make any reference to the pleas of guilty. Counsel submits that the pleas of guilty were significant mitigating factors and that the applicant ought to have been given credit for the utilitarian benefit of those pleas.
Moreover counsel submits that the applicant's remorse for his actions was conveyed to the learned magistrate. His Honour was told:
"Mr Gunn has consistently instructed that he is remorseful for his actions. He says he was coming to Tasmania for a fresh start after a really difficult two years, and that having it all come crashing down so quickly upon his arrival was frustrating, and he accepts that he did not manage his actions appropriately. He instructs in his own words that he 'fully understands that what I did was wrong, and I am fully aware of the impact. It must have impacted the lives of other people and put panic in the community. I can understand the anger and frustration directed towards me by Tasmanian's who had been doing well as far as COVID was concerned'."
The learned sentencing magistrate made no reference to remorse in his sentencing remarks.
As to sentences of imprisonment generally, counsel reiterates that they are to be imposed as a last resort, and that Wood J in DPP v King [2020] TASCCA 8 at [60] summarised the law as follows:
"Imprisonment is severe punishment (Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 627) and should be the last available punitive resort in any civilised system of criminal justice (Mainwaring v The Queen [2009] NSWCCA 207 at [71]). It is a fundamental principle of sentencing that a custodial sentence is a punishment of last resort and should not be imposed unless it is 'necessary', and when no other punishment is appropriate: Underwood v Schiwy [1989] TASRp 22; [1989] Tas R 269 per Nettlefold J; James v Turner [2006] TASSC 54, 15 Tas R 375 at [6] per Evans J; Parker v Director v of Public Prosecutions Public Prosecutions (1992) 28 NSWLR 282 at 296."
As to the issue of totality, counsel for the applicant points out that the first limb of the totality principle was summarised by Pearce J in DPP v Fletcher Jones [2019] TASCCA 18 at [46] as follows:
"The totality principle requires a judge who is sentencing an offender for a number of offences, or when the offender is already serving or is liable to serve other sentences of imprisonment, to have regard to the total effect of the sentences, the final penalty, to ensure it is a just and appropriate measure of the totality of the criminal behaviour: Mill v The Queen (1988) 166 CLR 59 at 63; Postiglione v The Queen (1997) 189 CLR 295; R v Gordon (1994) 71 A Crim R 459; Rae v State of Tasmania [2010] TASCCA 8 per Crawford CJ at [18]; Director of Public Prosecutions v Broad [2018] TASCCA 5 per Wood J at [4]. As Hunt CJ at CL in R v Gordon pointed out at 466:
'When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.'"
Counsel for the applicant submits that a cumulative sentence of 10 months' imprisonment with 4 months suspended is not reflective of the totality of the criminal conduct, and that the sentence is manifestly excessive in all of the circumstances.
The respondent's submissions on the ADVO breaches
Counsel for the respondent, Ms Bill, accepts that it is convenient to adopt the applicant's categorisation of the offending as either "family violence offences" or "COVID-19 offences", but points out that there is substantial overlap between the two.
The respondent points out that the applicant pleaded guilty to 17 breaches of a family violence order across four complaints. The respondent summarises the offending as follows:
· Three "in person" breaches by calling out to Ms Welsford at the Hobart Airport on 11 October 2021, being in her company at Woolworths on 12 October 2021 and on the same day at a residence in Bridgewater.
· Fourteen telephone breaches totalling 511 calls or messages between 13 October and 28 October 2021. There was contact every day that the applicant was in quarantine before his arrest on 26 October 2021, save 16 October 2021. There was one further phone call from Risdon Prison on 28 October 2021.
Counsel for the respondent points out that the maximum penalty for each of those breaches, being a fourth or subsequent offence, is five years' imprisonment.
It is submitted that the consensual nature of the contact is not an unusual feature of family violence offences, but that in any event it can be more appropriately characterised as an absence of an aggravating feature rather than a mitigating one. Counsel for the respondent observes that family violence orders operate to protect complainants who self-protect, as well as those who are complicit and refers to the discussion by Pearce J in Director of Public Prosecutions (Acting) v JCN [2015] TASFC 13 at [30].
Counsel for the respondent submits that general deterrence is a significant sentencing consideration for family violence offences and that there is a long line of authority that establishes that family violence offences ought to be treated seriously by the courts: for example, Director of Public Prosecutions v Foster [2019] TASCCA 15 and Moore v The Queen [2016] TASSC 23. Further, counsel submits, the escalating penalty provisions in s 35(1) of the Family Violence Act 2004, and the removal of the option of a fine for fourth or subsequent offences, indicate parliamentary intention that breaches of family violence orders are dealt with seriously.
Counsel for the respondent also submits that on the facts of the present matter, specific deterrence was also a significant sentencing consideration. She notes that all of the breaches were premediated and that the applicant travelled to Tasmania with the purpose of living with Ms Welsford when he had a significant history of family violence offending, including violent offending towards Ms Welsford in the presence of a five year old child. Counsel notes that the present offending occurred shortly after the applicant's release from custody in New South Wales on 26 September 2021. Counsel submits that "the celerity with which he reoffended, particularly after a term of imprisonment as a result of a breach of the order protecting Ms Welsford, indicates the lack of deterrent effect the previous sentence had".
It is submitted that the applicant's conduct, overall, indicates a continuing disregard from the law, the in-person breaches were direct contact offences, the telephone contact by messaging or calls were repeated, and constant. The respondent's counsel also observes that the breaches continued after the applicant had been arrested in the company of Ms Welsford, when it can be inferred he was aware breaches of the order had been detected by police and that the breaches have only ceased as a result of the applicant's imprisonment, and when he was denied access to Ms Welsford's sister's telephone number.
Counsel for the respondent contends that the applicant's submissions referring to Kelleher v Avery (above) and Parker v Hall (above) are unhelpful and that the present case can be distinguished from both of those cases in a number of ways, including the sheer number of offences (and amount of contacts), the direct contact, the lack of any confusion around the parameters of the order and the applicant's prior convictions.
The respondent concludes that the sentence imposed "was a significant penalty, but it was a term that was appropriate and within the wide sentencing discretion available to the learned magistrate considering the circumstances of the offence and those of the applicant".
The respondent's submissions on the public health breaches
Counsel for the respondent points out that the maximum penalties for each of the three breaches of s 60 of the Emergency Management Act were 100 penalty units or six months imprisonment.
Counsel also observes that significant restrictions on entry into Tasmania from medium or high risk locations were in place from March 2020 until 15 December 2021, and that it is uncontroversial that the impact on the Tasmanian community and economy was significant. Compliance with the restrictions prevented families from attending funerals, weddings or meeting grandchildren, and community condemnation dictated an appropriate but substantial penalty, particularly in the context of the manner and nature of the applicant's premeditated and blatant disregard for the public health orders.
Counsel for the respondent submits that in the present case, there were a number of significant aggravating features of the applicant's offending:
· Firstly, the applicant's conduct in unlawfully entering the jurisdiction and breaching quarantine did in fact put others at risk. He put fellow travellers, airline staff, biosecurity officers, police officers, hotel staff and security officers at risk. He went to Woolworths at 3.34pm on a Tuesday afternoon, a time that was likely to be busy, putting staff and customers at risk. And his association with a number of people – his partner and four other people who were at the residence – put them at risk.
· Secondly, the entire course of conduct illustrates a complete, repeated and consistent disregard for the law. The applicant actively sought to avoid the public health restrictions in place from the outset. His (false) applications for "Good-2-Go" passes, their subsequent rejections and his false E-Travel pass illustrates that at the time he landed in Tasmania on 11 October 2021 he was acutely aware that there were restrictions on entry, and the he did not have valid approval. It was entirely pre-meditated. The applicant's blatant contempt for the public health restrictions continued after he was advised in no uncertain terms by biosecurity officers and police officers that persons travelling from New South Wales had to enter a mandatory 14 day hotel quarantine, and that leaving could expose him to fines and imprisonment. He was escorted to quarantine by police, but undeterred by clear directions, the live possibility of imprisonment and the presence of police officers, it appears he immediately formed the intention to breach quarantine. The applicant's disregard continued after he was arrested by police and returned to quarantine as evidenced in his attitude towards the contact tracers, encapsulated in the offending on complaint 9549/2021.
· Thirdly, the consequences of the applicant's conduct were significant, including a three day lockdown of southern Tasmania and a significant involvement of State resources including police and contract tracers.
Counsel for the respondent notes that the applicant submits that the three day lockdown of southern Tasmania was a consequence only of the applicant's misleading statements about his whereabouts after he left hotel quarantine, the subject of complaint 9549/2021. Counsel notes that the applicant submits, effectively, that the consequential lockdown could not be taken into account as an aggravating factor of the other complaints (although he appears to concede that such an offence would not have arisen had he not breached quarantine in the first place).
Counsel for the respondent submits that the prosecutor's submissions referred to by the applicant must be construed in context. That is to say, that the learned magistrate was informed that the immediate causative factor that resulted in the three day lockdown was the applicant's failure to co-operate with authorities about his whereabouts after he left quarantine, but the concern about the applicant's lack of co-operation may have been "magnified by the previous false and misleading statements" and that in any event it is artificial to separate the applicant's offending in this way.
Counsel for the respondent submits that a significant public health response, such as a three day lockdown, is a reasonably foreseeable consequence of failing to comply with a range of public health directives in place at the time, and it was entirely appropriate for the learned magistrate to take this consequence into account when sentencing the applicant for all of the COVID-19 offences as no such measures would have been necessary had the applicant not unlawfully entered the State (as opposed to lawfully coming from a low risk jurisdiction), nor if he had not left quarantine.
Discussion
Whilst the sentence imposed for the ADVO breaches might be described as heavy, I accept the submission of counsel for the respondent that although the breaches were with the consent of Ms Welsford, specific deterrence was a significant sentencing consideration given that the breaches were premediated, occurred shortly after the applicant's release from custody in New South Wales on 26 September 2021 and were numerous. Family violence orders operate to protect complainants who are complicit as they often are not well placed to recognise their own best interests and their own security. The breaches were numerous and were in blatant disregard of the court ordered ADVO.
There is merit in the submission of counsel for the applicant that "whilst the consent of the complainant is not a factor that always militates in favour of a non-custodial penalty, that fact coupled with the conduct itself not being of an abusive or threatening nature ought to have led to a finding that the conduct was at the lower end of the scale". However, the bar is set very high on a motion to review a magistrate's sentence as manifestly excessive.
It matters not that I might have imposed a shorter period of imprisonment or explored some other sentencing modality. I have no charter to "tinker" with the sentence imposed (Braslin and Cowen v Tasmania (above) at [31]). As already noted an appellate court only sits to rectify a genuine error (Dinsdale v The Queen (above)) and that where, as here, no specific error is alleged I must be persuaded that the sentence imposed is "unreasonable or plainly unjust" (House v The King (above)). This requires something beyond being too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of judicial discretion (Bresnehan v The Queen (above)).
In view of the role to be played in the case of the ADVO offences by the considerations of both general and specific deterrence, I am unable to say that the learned magistrate's sentencing order was so manifestly wrong that it could only be the result of some undefinable error in the exercise of judicial discretion. Nor am I persuaded that the sentence imposed for those offences was "unreasonable or plainly unjust".
As to the public health breaches, I have not the slightest hesitation in concluding that the sentence imposed by the learned magistrate was well within the wide discretion afforded to him by the law. As noted the maximum penalties for each of the three breaches of s 60 of the Emergency Management Act were 100 penalty units or six months' imprisonment. Completely irrespective of the applicant ultimately testing positive to COVID-19, the sentence was justified on grounds of general deterrence and denunciation.
As submitted by counsel for the respondent, the applicant's conduct in unlawfully entering the jurisdiction and breaching quarantine in fact put others at risk. The applicant's entire course of conduct demonstrated a complete, repeated and consistent disregard for the law and the consequences of the conduct were significant, including a three day lockdown of southern Tasmania.
I do not accept the submission of counsel for the applicant that the three day lockdown was a consequence only of the applicant's misleading statements about his whereabouts after he left hotel quarantine, the subject of complaint 9549/2021 for which a fine of $1500 was imposed under the Public Health Act. It was, in my view, quite appropriate for the learned magistrate to take this consequence into account when sentencing the applicant to a single sentence for all of the Emergency Management Act offences. Had it not been for that offending no lockdown would have been necessary, whatever the immediate proximate reason for the relevant decision was.
Nor do I accept the submission of counsel for the applicant that a cumulative sentence of ten months' imprisonment with four months suspended is not reflective of the totality of the criminal conduct across the ADVO and the public health breaches. There was overlap in the conduct, and the issue of totality was adequately addressed in my view by the suspension of two months of each of the cumulative sentences of imprisonment. Taking into account all that could be said in mitigation on behalf of the applicant, including his pleas of guilty and expressed remorse and the invidious situation he found himself in without support from family or friends, I nonetheless am of the view that the total of the sentences imposed was fairly reflective of the totality of his criminal conduct.
Disposition
The motion to review is refused.
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