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RDS v Luplau

RDS v Luplau

Case [2021] WASC 280 17 August 2021

Appeal

Aggravated & Exemplary Damages

Manifestly Excessive Sentence

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   RDS -v- LUPLAU [2021] WASC 280
CORAM:   MCGRATH J
HEARD:   27 JULY 2021
DELIVERED          :   17 AUGUST 2021
FILE NO/S:   SJA 1006 of 2021
BETWEEN:   RDS
Appellant
AND
MICHAEL DAVID LUPLAU
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J ANDRETICH
File Number            :   PE 49025 of 2020

Catchwords:

Criminal law - Appeal against sentence - Failure to comply with direction under Emergency Management Act 2005 - COVID-19 pandemic - Express error of law - Taking into account lie to police as an aggravating factor - Whether sentence imposed manifestly excessive

Legislation:

Emergency Management Act 2005 (WA)
Sentencing Act 1995 (WA)

Result:

Leave to appeal granted on grounds 1 and 2
Appeal granted on grounds 1 and 2

Term of suspended imprisonment set aside and in lieu thereof a $1,000 fine is imposed

Spent conviction granted.

Category: B

Representation:

Counsel:

Appellant	:	Mr G C R Yin
Respondent	:	Mr B D Nelson

Solicitors:

Appellant	:	Andrews Legal
Respondent	:	State Solicitor's Office

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

AAN v Butterfield [2021] WASC 228
Cartwright v The State of Western Australia [2010] WASCA 4
Chan v The Queen (1989) 38 A Crim R 337
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Gillespie v The State of Western Australia [2013] WASCA 149
GNR v The State of Western Australia [2015] WASCA 5
Johnson v Vander Sanden [2021] WASCA 27
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
LWD v The State of Western Australia [2017] WASCA 174
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pedersen v The State of Western Australia [2010] WASCA 175
R v Tognini [2000] WASCA 31
Roberts v The State of Western Australia [2014] WASCA 239
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sharpe v Vinning [2020] WASCA 79
Tonkin v Busby [2021] WASC 61
Vander Sanden v Johnson [2020] WASC 331
Wheeler v The Queen [No 2] [2010] WASCA 105
Wright v McMurchy [2012] WASCA 257

MCGRATH J:

Introduction

The appellant is a 50-year-old woman with excellent antecedents who lives in Victoria. In 2020, her father was seriously ill in the palliative care ward of a hospital in Western Australia (the Hospital). The appellant decided to visit her father to say goodbye before he died. She diligently completed an application to enter Western Australia and was granted approval to enter the State with a condition that she quarantine for 14 days but with permission to visit her father during the period of quarantine with the approval of the Hospital. The Hospital in which her father was a patient approved the visit, but he was subsequently moved to another hospital (the Second…

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 RDS v Luplau

Details

AGLC: RDS v Luplau [2021] WASC 280
Case: [2021] WASC 280
Decision Date

CaseChat Overview and Summary

The appellant, RDS, appeals against a sentence imposed by the Magistrates Court of Western Australia for breaching a direction under the Emergency Management Act 2005 (WA) by failing to comply with a quarantine requirement during the COVID-19 pandemic. The learned magistrate sentenced the appellant to imprisonment for 6 months and 1 day, suspended for a period of 12 months. RDS contends that the sentence was manifestly excessive and that the magistrate erred in finding that a lie told to police during an interview was an aggravating factor. RDS seeks a spent conviction order. The appeal was heard on 27 July 2021 and this judgment was delivered on 17 August 2021. Leave to appeal was granted on grounds 1 and 2 and the appeal was allowed on those grounds. The sentence imposed by the learned magistrate was set aside and in lieu thereof, a fine in the amount of $1,000 was imposed. A spent conviction order was also granted.

In allowing the appeal, McGrath J held that the learned magistrate erred in finding that the lie told to police during an interview was an aggravating factor. The court found that the appellant demonstrated remorse during the interview and therefore, the proper characterisation of the conduct was that it was a mitigating factor. McGrath J also held that the sentence imposed by the learned magistrate was manifestly excessive given the personal circumstances of the appellant, the seriousness of the offence, and the range of sentences customarily imposed for this type of offence. The court set aside the suspended term of imprisonment and imposed a fine of $1,000. Finally, the court granted a spent conviction order as the refusal to make such an order would impact adversely on the appellant's employment prospects and there was no public interest in the appellant's conviction for the offence being recorded and exposed to public scrutiny.

Orders