Phillips v Wroe - [2022] WASC 48

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   PHILLIPS -v- WROE [2022] WASC 48
CORAM:   HALL J
HEARD:   9 FEBRUARY 2022
DELIVERED          :   9 FEBRUARY 2022
PUBLISHED           :   15 FEBRUARY 2022
FILE NO/S:   SJA 1003 of 2022
BETWEEN:   AMANDA PHILLIPS
Appellant
AND
ASHLEIGH JAYDE WROE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE E O'DONNELL
File Number            :   PE 54407/2021, PE 54408/2021 and PE 54409/2021

Catchwords:

Criminal Law - Appeal against sentence - Failure to comply with directions under the Emergency Management Act 2005 (WA) - Magistrate misinformed as to the conduct relevant to one of the charges - Express factual error - Appeal allowed and appellant re-sentenced - Turns on own facts

Legislation:

Emergency Management Act 2005 (WA)

Result:

Leave to appeal granted
Appeal allowed
Appellant re‑sentenced

Category: B

Representation:

Counsel:

Appellant	:	C Townsend
Respondent	:	J Berry

Solicitors:

Appellant	:	Timpano Legal
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

AAN v Butterfield [2021] WASC 228
Johnson v VanDer Sanden [2021] WASCA 27
RDS v Luplau [2021] WASC 280
Tonkin v Busby [2021] WASC 61
VanDer Sanden v Johnson [2020] WASC 331

HALL J:

This is an appeal against sentence. It was heard on an urgent basis on 9 February 2022. At the conclusion of the appeal hearing, I granted leave to appeal, allowed the appeal and said that the reasons for my decision would be published at a later time.
The appellant arrived in Western Australia on a flight from the Northern Territory on 22 December 2021. She had been double vaccinated against COVID‑19 and had sought and obtained a valid G2G pass. A few days prior to her arrival, the State Emergency Coordinator signed a direction declaring the Northern Territory to be a low‑risk jurisdiction. The consequence of this was that on arrival the appellant was directed to self‑quarantine at an address in Fremantle for a period of 14 days, wear a mask when she was not at that address, and present for testing for COVID‑19 on specified dates. She failed to comply with these directions, and on 29 December 2021 was arrested, charged and remanded in custody.
On 4 January 2022, the appellant appeared in the Magistrates Court and pleaded guilty to three offences of failing to comply with directions made under the Emergency Management Act 2005 (WA) (EM Act). She was sentenced to a total effective sentence of imprisonment of 6 months and 1 day, partially suspended after serving 2 months of the sentence.
The appellant sought leave to appeal against the sentence. The appeal was listed for hearing on an urgent basis due to the shortness of the custodial portion of the sentence. The grounds of appeal are that the magistrate erred by not imposing a wholly suspended sentence, that the sentence on each individual charge is manifestly excessive and that the magistrate made an express error as to the facts relevant to one of the charges.
The error the subject of the third…

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 Phillips v Wroe

Details

AGLC: Phillips v Wroe [2022] WASC 48
Case: [2022] WASC 48
Decision Date: 15 FEBRUARY 2022

CaseChat Overview and Summary

The case of Phillips v Wroe involved an appeal by the appellant, Phillips, against a sentence imposed by the Magistrates Court of Western Australia. Phillips was convicted for failing to comply with directions under the Emergency Management Act 2005 (WA). The primary issue before the court was whether the magistrate had erred in his assessment of the facts pertinent to one of the charges against Phillips, thereby impacting the severity of the sentence. Additionally, the court had to consider whether the magistrate's misapprehension constituted a significant factual error that warranted the appeal and a subsequent re-sentencing of Phillips.

The court examined the magistrate's decision-making process and identified a clear error in the magistrate's understanding of the facts related to one of the charges. The magistrate had been misinformed about the specific conduct that constituted the offence, leading to an improper application of the law and an excessive sentence. The court found that this misapprehension amounted to an express factual error, which was significant enough to warrant a review of the sentence. Given the nature and severity of the error, the court concluded that the appeal should be allowed, and Phillips should be re-sentenced based on the correct facts.

Upon allowing the appeal, the court proceeded to re-sentence Phillips, taking into account the correct factual circumstances of the case. The court carefully reviewed the evidence and the nature of the offences, ensuring that the new sentence was proportionate to the correctly assessed conduct. The court emphasised that the re-sentencing was to be based on the facts as they properly stood, free from the error that had influenced the original decision. The appeal was thus resolved by the court allowing the appeal and re-sentencing Phillips in accordance with the correctly identified facts.

Orders