RDS v Luplau
[2021] WASC 280
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 Hospital) that regrettably would not allow her to visit. Therefore, the appellant's relatives drove her father to a beach in Bunbury where the appellant sat with her father on a picnic rug for a couple of hours. The appellant did not wear a mask and purchased takeaway drinks from a café at the beach. The appellant thereby breached her quarantine condition.
On 11 December 2020, the appellant pleaded guilty to one charge of failing to comply with a direction under sections 67, 70 and 72A of the Emergency Management Act 2005 (WA). The appellant was sentenced to imprisonment for a period of 6 months and 1 day suspended for a period of 12 months.
The appellant now seeks leave to appeal against the sentence imposed on two grounds. First, the appellant contends that the learned magistrate erred in law by taking into account, as an aggravating factor, a lie the appellant told to the police during an interview after she was apprehended. Secondly, the appellant contends that the learned magistrate imposed a sentence that was manifestly excessive in that a different type of sentence should have been imposed rather than a suspended term of imprisonment. In addition, the appellant seeks a spent conviction order.
For the following reasons, I have determined that leave to appeal is granted on grounds 1 and 2 and that the appeal should be allowed. The sentence imposed by the learned magistrate will be set aside and in lieu thereof a fine in the amount of $1,000 will be imposed and a spent conviction order will be made.
In these reasons for decision I will consider the following:
1.The charge and nature of the offence.
2.The Magistrates Court proceedings.
3.The grounds of appeal.
4.An assessment of the merits of the appeal.
The charge and nature of the offence
The prosecution notice lodged on 2 November 2020 pleaded that on 28 October 2020 the appellant failed to comply with a direction given under sections 67, 70 and 72A of the Emergency Management Act, contrary to s 86(1)(a) of the Emergency Management Act.
The Emergency Management Act was enacted in 2005.[1] Its long title is 'An Act to provide for prompt and coordinated organisation of emergency management in the State, and for related purposes'. The Act was amended by the Emergency Management Amendment (COVID-19 Response) Act 2020 (WA).
[1] In these reasons, references to legislation are to the Emergency Management Act, unless stated otherwise.
The relevant offence is under s 86(1), which provides:
A person given a direction under section 47, 67, 70, 71, 72A or 75(1)(i) must comply with the direction.
Penalty:
(a)imprisonment for 12 months or a fine of $50,000;
(b)for each separate and further offence committed by the person under the Interpretation Act 1984 section 71, a fine of $5,000.
Section 86 was amended in 2020 to include the penalty of imprisonment.[2]
[2] Emergency Management Amendment (COVID-19 Response) Act 2020 (WA) s 13.
By s 56, the Minister responsible for the administration of the Act may, in writing, declare that a state of emergency exists in the whole or in any area or areas of the State. The declaration must not be made unless the Minister:
is satisfied that extraordinary measures are required to prevent or minimise -
(i)loss of life, prejudice to the safety, or harm to the health, of persons or animals; or
(ii)destruction of, or damage to, property; or
(iii)destruction of, or damage to, any part of the environment.[3]
[3] Emergency Management Act 2005 (WA) s 56(2)(c).
Part 6 of the Act applies where an emergency declaration or a state of emergency declaration is in force, and confers powers on specified office holders. The powers include the power to give directions. By s 77, directions may be oral (to be confirmed in writing) or in writing. By s 77(2A):
A direction under section 67, 70, 71, 72A(2) or 75(1)(i) that is given in relation to a class of person or thing -
(a)need not be given directly to the persons to whom it applies; and
(b)despite the Interpretation Act 1984 section 41 (to the extent to which it applies), need not be published in the Gazette; and
(c)must be published in the manner that the Minister considers suitable in the circumstances of the emergency.
The directions relied upon in this matter were made under sections 67, 70 and 72A.
Relevantly, s 67 permits a hazard management officer, by direction, to prohibit the movement of persons within, into, out of or around an emergency area or any part of the emergency area.
Section 70 provides that a hazard management officer or authorised officer may direct, inter alia, any person who has been exposed, or any class of person who may have been exposed, to a hazardous substance:
(a)to remain in an area specified by the officer for such period as is specified by the officer;
(b)to remain quarantined from other persons for such period, and in such reasonable manner, as is specified by the officer;[4]
[4] The extension of the power to direct any class of persons who may have been exposed to a hazardous substance was made by the amendment in 2020. Hazardous substance is defined in s 3 and includes any substance 'that is capable of causing loss of life, injury to a person, or damage to the health of a person or to the environment'.
The period specified in s 70(1) must not be more than 24 hours unless the State Emergency Coordinator gives the direction, or has given authorisation for a longer period to be specified 'in relation to persons exposed to the hazardous substance'.[5]
[5] Emergency Management Act 2004 (WA) s 70(3).
Further, general powers are given by s 72A(2):
For the purposes of emergency management during an emergency situation or state of emergency, a hazard management officer or authorised officer may take, or direct a person or a class of person to take, any action that the officer considers is reasonably necessary to prevent, control or abate risks associated with the emergency.
Factual background and the Magistrates Court proceedings
On 11 December 2020, the appellant appeared in the Magistrates Court, represented by counsel, and pleaded guilty to the charge.[6]
[6] ts 10 (11/12/2020).
The factual background of the offending was outlined in the facts, plea in mitigation and the factual findings of the learned magistrate.
The appellant is a 50-year-old woman who resides in Victoria with her husband and children. Her husband was recovering from heart surgery and she had been acting as his carer. The appellant's extended family resides in Western Australia. The appellant's elderly father was dying of metastatic stage 4 colon cancer in Western Australia and by mid-October 2020 he entered palliative care at the Hospital. Accordingly, the appellant made the decision to travel to Western Australia to visit her father.
The appellant completed an application to enter Western Australia by completing a WA Entry - Request for Approval as an Exempt Traveller. The approval form was indorsed by the issuing officer with the entry that 14 days self-quarantine was 'modified to visit critically ill father and must receive approval from hospital care facility prior to each visit'. Accordingly, the appellant was issued with a modified quarantine direction, namely a Person Entering to Visit Sick Relative Direction pursuant to the Emergency Management Act. The Direction was for the period between 26 October and 8 November 2020. Clause 4 of the Direction required the appellant to self-quarantine at an address in Eaton for a period of 14 days.
Clause 6 of the Direction provided:
You must remain at the suitable premises until fourteen (14) days after the date on which you entered Western Australia or until you leave Western Australia, whichever period is shorter, unless:
(a)You are visiting your sick relative in accordance with paragraph 8; or
(b)You are given another direction which you are required by law to obey; or
(c)You must leave the suitable premises to escape an immediate threat to your safety in accordance with paragraph 9; or
(d)You must leave the suitable premises to seek urgent medical treatment at a hospital with paragraph 10.
Clauses 8, 11 and 12 provided the conditions that permitted the appellant to visit her dying father:
(8)You must travel to and from the place at which you are visiting your sick relative by the most direct route available and without stopping except as required by law or necessary for fuel and rest.
…
(11)You must wear a facemask if available when travelling and when visiting your sick relative.
(12)If you are visiting your sick relative at a hospital or other treatment centre, you must notify the nursing manager or other appropriate authority at the hospital or treatment centre that you are subject to a quarantine requirement prior to attending to visit your sick relative.
The appellant met her obligations under the Direction by commencing the period of self-quarantine at the stated address, and she tested negative to a COVID-19 test on day two of her self-quarantine period in Western Australia.
The appellant's father was a patient at the Hospital, which was supportive of her entering Western Australia and visiting her father in the Hospital. By way of letter dated 24 July 2020, the Hospital expressed support for the appellant travelling to Western Australia.
The appellant's father was subsequently transferred from the Hospital to the Second Hospital which did not permit an exempt traveller to visit a patient. The appellant telephoned the Second Hospital and was told that authorisation would not be given to her to visit her father. If the appellant's father had remained in the Hospital then she would have been lawfully able to visit him in the palliative care unit.
On 28 October 2020, a relative collected the appellant's father from the Second Hospital and drove to Koombana Bay Beach in Bunbury. The appellant drove herself in a separate car to Koombana Bay Beach. The CCTV footage obtained from that location showed the appellant assisting her father out of the other vehicle and into a wheelchair. The appellant was not wearing a facial covering. The appellant then walked with her father out of the carpark to the beach foreshore and set up a picnic rug on the sand. The appellant interacted with her father, brother and sister-in-law. At one point the appellant walked to a nearby café with her sister-in-law and purchased a takeaway drink. There were other unidentified persons in the café.
The appellant remained at the beach from 10.10 am to around midday. The appellant returned to her residence and continued to meet the requirements of the Direction.
On 30 October 2020, the police attended at the appellant's residence and asked her questions concerning whether she visited Koombana Bay Beach. The appellant initially stated that she visited the Second Hospital and that her father was driven to the beach but that she did not leave her vehicle. The police officer then showed the appellant the CCTV image from Koombana Bay Beach. The appellant then commenced crying and accepted her breach of the Direction.
At the hearing before the learned sentencing magistrate, there was a fact in dispute being whether the appellant lied to the police concerning her movements during a telephone conversation on 29 October 2020. Ultimately, the prosecutor did not rely upon that contested fact and therefore, the learned magistrate did not make a finding about that issue.
The appellant's father died prior to the sentencing hearing.
Magistrate's sentencing remarks
The learned magistrate accepted that the appellant had been provided with advice by the Hospital that she was able to visit her dying father in palliative care but that due to him being transferred to the Second Hospital she was unable to visit.[7] The learned magistrate accepted that the health of the appellant's partner and father meant 'it must have been a terrible time'.[8] Her Honour gave a 25% discount for the plea of guilty at the first reasonable opportunity.
[7] ts 23 (11/12/2020).
[8] ts 23 (11/12/2020).
The learned magistrate found that an aggravating factor was that during the interview with the police the appellant denied the offending before confessing.[9] The learned magistrate found that the interview supported a finding that the appellant was not remorseful at that time. A further aggravating factor was the fact that the appellant attended the café and was not wearing a facial covering. Her Honour found that both personal and general deterrence were important sentencing considerations in respect of the sentencing of the appellant.
[9] ts 24 (11/12/2020).
The learned magistrate determined that whilst imprisonment was the only appropriate disposition it was open 'to exercise mercy' and suspend the term of imprisonment.[10] Her Honour imposed a term of imprisonment of 6 months and 1 day suspended for 12 months.[11]
[10] ts 27 (11/12/2020).
[11] ts 29 (11/12/2020).
Appeal
Grounds of appeal
The amended notice of appeal pleads two grounds of appeal in the following terms:
Ground 1
The imposition of a term of 6 months and 1 day imprisonment suspended for 12 months was manifestly excessive particularly having regard to the place the offending occupied on the scale of seriousness and the personal circumstances of the appellant.
Ground 2
The sentencing Magistrate erred in law by finding the fact that the appellant lied to Police during an interview was an aggravating factor.
Legal principles
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[12] An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[13]
[12] Criminal Appeals Act 2004 (WA) s 9(1).
[13] Criminal Appeals Act 2004 (WA) s 8.
The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[14] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[15]
[14] Criminal Appeals Act 2004 (WA) s 9(2).
[15] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).
The court may dismiss or allow the appeal and may set aside or vary the sentence and substitute a sentence that should have been imposed.[16] Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. That is, the appellate jurisdiction to intervene in an appeal that alleges an express error will only be enlivened if the error is material and the court determines that a different sentence should have been imposed.[17]
Application to adduce evidence
[16] Criminal Appeals Act 2004 (WA) s 14.
[17] Roberts v The State of Western Australia [2014] WASCA 239 [47].
Both parties sought to introduce evidence at the appeal hearing. The appellant sought to rely upon her affidavit, sworn 14 July 2021, and annexures thereto. The respondent sought to introduce additional evidence being an affidavit of Senior Constable Luplau, sworn 26 July 2021, and annexures thereto. The parties proposed that the affidavits be received by the court for resentencing, should the appeal be allowed.
The general principle is that an appeal court must decide an appeal on the evidence and material before the learned magistrate.[18] However, s 40(1)(e) of the Criminal Appeals Act provides a discretion to admit other evidence on appeal.
[18] Criminal Appeals Act 2004 (WA) s 39(1).
Section 41(4) of the Criminal Appeals Act permits the court, when determining an appeal that does or may require it to impose a sentence, to take into account any matter, including any material change to a person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard. In LWD v The State of Western Australia,[19] the Court of Appeal stated that arguably s 41(4) is only relevant where the court has found error and is exercising the sentencing discretion afresh or considering whether to exercise a residual discretion to dismiss the appeal. The Court of Appeal did not appear to make a determination in respect of the issue but observed that in any event, there is no reason to think that s 41(4) has any broader application than that given to s 40(1)(e).
[19] LWD v The State of Western Australia [2017] WASCA 174 [82].
The test to be applied in determining whether additional evidence is admitted under s 40(1)(e) in an appeal against sentence is whether, had the additional evidence been before the sentencing judge, a different sentence would have been imposed.[20] A distinction is ordinarily drawn between matters which existed but were not known at the time of the sentencing and matters which have come into existence since the time of sentence.[21]
[20] Wheeler v The Queen [No 2] [2010] WASCA 105.
[21] Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [29] - [32].
The appellant's affidavit largely comprises an outline of the very factors raised in the plea in mitigation in the Magistrates Court. In that respect it is no more than a recital of the plea in mitigation. However, the appellant's affidavit attaches references and letters from prospective employers regarding unsuccessful employment applications by the appellant, and a psychological report dated 25 June 2021.[22] I will receive that part of the appellant's affidavit that produces the employment letters and the psychological report. I will not receive that part of the affidavit that recites the factors raised in mitigation.
[22] Affidavit of RDS sworn on 14 July 2021, unsuccessful applications for employment (Annexures G - K), clinical psychological report of Diana Harte dated 25 June 2021 (Annexure O).
In his affidavit, Senior Constable Luplau deposes to his recollection regarding the nature of his discussion with the appellant during a telephone call on 29 October 2020. As I have observed, the prosecutor did not rely upon that contested fact and therefore, the learned magistrate did not make a finding concerning that issue. It is not open to the respondent to now lead evidence concerning that issue. I will not receive that part of the affidavit. Senior Constable Luplau further deposes to steps that were taken by the Second Hospital to manage the ward in which the appellant's father was based, after he returned from the beach. This issue was not raised by the learned prosecutor at the sentencing hearing. Further, there is no particularisation of the nature of the steps taken by the Second Hospital and in any event those paragraphs are hearsay. I will not receive that part of the affidavit. Senior Constable Luplau also produces the bodycam footage of the interview conducted on 30 October 2020. The appellant did not oppose the court receiving that footage. Nevertheless, I will not receive the bodycam footage taken on 30 October 2020. The relevant contents of the bodycam footage were not in dispute before the learned magistrate. The factual findings of the learned magistrate based on the bodycam footage are not in dispute. Accordingly, I will not receive any part of the affidavit of Senior Constable Luplau.
Assessment of the merits of the appeal
I will now consider each ground of appeal. I will first determine ground 2 given that the appellant contends that the magistrate made an express error of law.
Ground 2
By ground 2 the appellant contends that the learned magistrate erred in law by finding that the appellant's lie to the police during the interview on 30 October 2020 was an aggravating factor.
The learned sentencing magistrate made the finding that on 30 October 2020 the appellant lied to the police when asked by the police during her interview whether she had attended the beach area. The appellant initially denied the offending but when confronted with the CCTV photographs the appellant admitted the offending behaviour in the same interview.
The appellant's written submissions appear to contend that a lie to the police after the commission of the offence cannot, as a matter of law, be an aggravating factor and as a consequence may only have relevance in the context of the consideration of mitigating factors rather than as an aggravating factor. In oral submissions counsel for the appellant clarified the ground as contending that in the circumstances of this case, the lie, being an initial denial of the offending when asked by the police, was not an aggravating factor.
Section 7 of the Sentencing Act provides that aggravating factors are factors which, in the court's opinion, increase the culpability of the offender, thereby causing the court to evaluate the offence more seriously and which may therefore increase the penalty imposed.[23] Section 7(2) of the Sentencing Act expressly excludes as aggravating factors the fact that an offender pleaded not guilty, the offender has a criminal record and that a previous sentence has not achieved the purpose for which it was imposed.
[23] Gillespie v The State of Western Australia [2013] WASCA 149 [14].
An aggravating factor need not form part of the offending conduct itself to be synonymous with a 'circumstance of an offence' for the purposes of s 6(2)(b) of the Sentencing Act. However, often an aggravating factor may also be a circumstance of an offence. An aggravating factor may comprise post-offence conduct such as failing to render assistance or to request the assistance of emergency services. In Pedersen v The State of Western Australia, the Court of Appeal appears to have accepted the learned sentencing judge's characterisation of lies told by the appellant to police during an interview, in order to attribute blame to an innocent third party, as being an aggravating factor.[24]
[24] Pedersen v The State of Western Australia [2010] WASCA 175.
In the context of offending under the Emergency Management Act, lying to the police who are investigating a possible contravention of a direction may constitute an aggravating factor. It is important that persons who have contravened a direction concerning quarantine provide truthful answers to the police so that possible contacts are traced and the likelihood of any infections are identified and contained.
In the present case the appellant contravened the Emergency Management Act and did not provide honest answers to the investigating officers when first asked. However, within minutes of denying the allegation, and in the course of the interview, the appellant gave an honest account of her offending and accepted responsibility. In those circumstances, I find that the learned magistrate did err in finding that the answers given by the appellant during the interview constituted an aggravating factor. Not infrequently, offenders give varying accounts of their behaviour during a police interview. If, ultimately, an offender admits the offending and thereby accepts responsibility it is difficult to find that answers denying the offending given earlier in the same interview could properly be characterised as an aggravating factor.
If an offender denies the offending in the course of an interview with the police that may be considered a relevant factor in determining whether the offender is remorseful. During the interview with the police the appellant admitted her offending and accepted responsibility and then pleaded guilty at the first reasonable opportunity. I find that the proper characterisation of the appellant's conduct during the interview and her plea of guilty is that it demonstrated her remorse. That is a mitigating factor and not an aggravating factor.
Therefore, I grant leave on ground 2. The ground has been made out. I will now consider ground 1.
Ground 1
By ground 1 the appellant contends that the sentence imposed was manifestly excessive. A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly long. To succeed on a ground pleading that a sentence is manifestly excessive requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[25]
[25] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 - 325.
The appellant contends that the imposition of a sentence of imprisonment, whether immediate or suspended, was not within the learned magistrate's discretion. That is, in all the circumstances, including those personal to the appellant, the sentence imposed was not one which was open in the exercise of a sound sentencing discretion.
To determine whether a sentence is excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[26] The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. There is no single correct sentence. What is important is the unifying principles which sentences in comparable cases reveal and reflect.
[26] Sentencing Act 1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600, 613.
Section 6(1) of the Sentencing Act requires that a sentence imposed on an offender be commensurate with the seriousness of the offence. By s 6(2) of the Sentencing Act, the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating and mitigating factors and the vulnerability of any victim of the offence.
Pursuant to s 6(4) of the Sentencing Act a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or that the protection of the community requires it.
The relevant principles with respect to the imposition of a suspended term of imprisonment are uncontroversial.[27] The sentencing options available to the court are set out in s 39 of the Sentencing Act. The ultimate option is a term of immediate imprisonment. The two preceding options are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Sentencing Act a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option.
[27] Cartwright v The State of Western Australia [2010] WASCA 4 [8].
Pursuant to s 76(2) of the Sentencing Act, a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to five years, suspension may be ordered in cases involving serious offending.
The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term of imprisonment.[28] That is, all circumstances must be revisited. The court must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.
[28] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].
In considering ground 1, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate. There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[29]
[29] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].
I now turn to consider the factors in determining whether the sentence imposed by the learned magistrate was manifestly excessive.
Maximum penalty
The statutory penalty for the offence is a fine of $50,000 or imprisonment for 12 months.[30]
Personal circumstances
[30] Emergency Management Act 2005 (WA) s 86(1).
The appellant has excellent antecedents, being of good character with no criminal record. The appellant is a 50-year-old woman who is married with children and has an impressive employment history. The appellant was acting as the carer of her husband who was recovering from heart surgery whilst balancing her commitment to her elderly father who was dying of cancer in a hospital in Western Australia. Counsel at the sentencing hearing referred to the appellant's poor mental health as a mitigating factor. The psychological report referred to the appellant presenting with a major depressive illness.[31] The learned sentencing magistrate accepted that the appellant was 'suffering from mental stress' arising from the health of the appellant's husband and father and that 'it must have been a terrible time' in her life.[32] The psychological report confirms that the appellant is suffering from a major depressive illness.
[31] Report of Ms Harte, Clinical Psychologist dated 25 June 2021, Annexure O to the Affidavit of the appellant sworn 14 July 2021.
[32] ts 23 (11/12/2020).
In this type of offending general deterrence is an important sentencing consideration. However, whilst general deterrence is an important sentencing consideration, the antecedents of the offender are not irrelevant. Appropriate weight must be given to the appellant's excellent antecedents.
The learned magistrate found that personal deterrence was an important sentencing consideration in respect of the appellant.[33] In my respectful view that was not a factor that warranted any weight in the circumstances of this case. Clearly, the learned magistrate erred in making that finding. That erroneous finding provides support for the view that the sentence imposed was excessive.
Seriousness of the offence
[33] ts 26 (11/12/2020).
The respondent submits that there were aggravating factors in this case, being that the appellant travelled from Victoria, left quarantine and did not wear a facial covering, interacted with members of her family on the beach and attended a café for takeaway drinks where there were other patrons. The appellant's negative COVID-19 test was on day two of quarantine and not later in the period of quarantine.
Plea of guilty and remorse
The learned sentencing magistrate afforded the appellant a 25% discount pursuant to s 9AA of the Sentencing Act for the plea of guilty at the first reasonable opportunity.[34] The appellant accepted responsibility for her offending and was remorseful.
Range of sentences customarily imposed
[34] ts 22 (11/12/2020).
There are limited sentencing authorities in respect of this offence. No tariff or standards of sentencing have been established.[35]
[35] Tonkin v Busby [2021] WASC 61 [30].
In Vander Sanden v Johnson,[36] Hill J imposed a 6-month community based order. The offender was granted approval to enter Western Australia with a requirement that she quarantine for 14 days. The offender entered Western Australia secreted in a vehicle. For six days the offender, being aware that the police were trying to locate her, evaded the police. The offender did not visit public places. Her Honour found that the offender's conduct was at the upper end of seriousness for this type of offending, given the deception involved and the period for which the offender knowingly evaded the authorities. A subsequent appeal in respect of the sentence imposed by Hill J was dismissed.[37]
[36] Vander Sanden v Johnson [2020] WASC 331 [51].
[37] Johnson v Vander Sanden [2021] WASCA 27.
In Tonkin v Busby,[38] Allanson J set aside a term of imprisonment of 7 months, with 2 months to be served immediately and 5 months suspended for 12 months, and in lieu thereof imposed a fine in the amount of $6,000. The offender was required to undertake self‑quarantine for 14 days after arriving from South Australia. On the 12th day of self‑quarantine, after receiving a negative COVID-19 test the day before, the offender attended a brewing company where he interacted with patrons.
[38] Tonkin v Busby [2021] WASC 61.
In AAN v Butterfield,[39] Tottle J set aside a term of imprisonment of 7 months, with 2 months to be served immediately and 5 months suspended for 12 months, and in lieu thereof imposed a community based order for a period of 6 months and made a spent conviction order. The offender was subject to a 14-day self-quarantine order. On the 13th day of quarantine, the offender breached the order by travelling in a vehicle with other persons whilst not wearing a face mask. The offender was 20 years of age with sound antecedents.
Assessment
[39] AAN v Butterfield [2021] WASC 228.
The learned sentencing magistrate expressly determined that imprisonment was the only appropriate sentence. In my respectful opinion in so concluding her Honour erred. That is, the imposition of a suspended term of imprisonment is unreasonable and plainly unjust when regard is had to the circumstances of the appellant's offending and factors personal to her.
The appellant was 49 years of age at the time of the offending, with outstanding antecedents, and she lawfully entered Western Australia after making all necessary inquiries and applications to enter with permission to visit her dying elderly father. The appellant understood that she was permitted to visit her father at the Hospital. That was so until her father, a patient in palliative care, was transferred to the Second Hospital. The appellant committed the breach in the most extenuating of circumstances.
The appellant had a negative COVID-19 test result on day two of her self-quarantine. The appellant was actively meeting her obligations.
The appellant was remorseful, accepted responsibility for her offending and pleaded guilty at the first reasonable opportunity. The learned magistrate granted a 25% discount.
I am unable to discern from the learned magistrate's reasoning why the term of imprisonment included an additional one day. A sentence imposed on an offender must be commensurate with the seriousness of the offence and the court must not impose a sentence of imprisonment unless the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. Those principles have application to all offences including offences under the Emergency Management Act.
Section 86 of the Sentencing Act provides that a court must not sentence an offender to a term of imprisonment of 6 months or less. If the court considers that, having regard to all relevant sentencing factors including the seriousness of the offending, a term of imprisonment of 6 months or less is appropriate, then the court must impose an alternative sentencing option under s 39 of the Sentencing Act.[40]
[40] Johnson v Vander Sanden [2021] WASCA 27.
It is impermissible to circumvent s 86 by imposing a term of imprisonment of 6 months and 1 day whether immediate or suspended. By s 76(2) of the Sentencing Act, suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. That subsection applies whether the sentence is suspended in whole or in part. It is not a proper exercise of the sentencing discretion to use the power to suspend so as to impose a sentence of imprisonment, even if only part must be served immediately, where that sentence of imprisonment would not otherwise be appropriate in the circumstances.
Accordingly, I grant leave on grounds 1 and 2 and allow the appeal.
Resentencing
I must resentence the appellant.
I set aside the suspended term of imprisonment and in lieu thereof I impose a fine in the amount of $1,000. In determining the quantum of the fine imposed I have considered the capacity of the appellant to pay the fine. In particular, I am mindful that the appellant was retrenched from her previous employment and has not been able to secure alternative employment.
Spent conviction
The appellant further contended that a spent conviction order should be imposed. The learned magistrate declined to make such an order.[41] I will now consider whether a spent conviction order should be made.
[41] ts 29 (11/12/2020).
The power to make a spent conviction order is found in s 39(2)(a) - (d) of the Sentencing Act. Section 45 of the Sentencing Act sets out the conditions for the making of a spent conviction order. Relevantly, s 45 provides:
(1)Under section 39(2), a court sentencing an offender is not to make a spent conviction order unless -
(a)it considers that the offender is unlikely to commit such an offence again; and
(b)having regard to -
(i) the fact that the offence is trivial; or
(ii) the previous good character of the offender,
it considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender. …
(2)A spent conviction order in respect of a conviction is an order that the conviction is a spent conviction for the purposes of the Spent Convictions Act 1988.
(3)The Spent Convictions Act 1988, other than Part 2, applies to and in respect of a conviction in respect of which a spent conviction order has been made.
(4)A spent conviction order is to be taken as part of the sentence imposed.
Accordingly, s 45 of the Sentencing Act directs the court not to make a spent conviction order unless three conditions are satisfied. The conditions, which are prerequisites to the making of the spent conviction order, are:
1.The court must consider that the offender is unlikely to commit such an offence again.
2.The offence must be trivial or the offender must be of previous good character.
3.Having regard to the precondition that the offence must be trivial or the offender must be of previous good character, the court must consider that the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.
Therefore, there are two preconditions that must be established before the court considers whether it is satisfied that the discretion can be exercised to make a spent conviction order. The sentencing court has a discretion, not a duty, to make a spent conviction order.[42]
[42] GNR v The State of Western Australia [2015] WASCA 5 [44].
The preconditions must be established by convincing evidence.
The term 'trivial' in its natural and ordinary usage means of little importance, trifling, insignificant.[43] In Sharpe v Vinning,[44] the Court of Appeal considered the meaning to be given to the term 'trivial offence', stating:
The expression 'the offence is trivial' in s 45(1)(b)(i) of the Sentencing Act directs attention primarily to the type or nature of the offence in question, including the inherent seriousness of the offence and the maximum penalty, having regard to the spectrum of seriousness of offences created under written laws, including the inherent seriousness of the offences and the maximum penalties.
As we have mentioned, the term 'offence' in s 45(1) refers to the acts or omissions (that is, the factual ingredients or elements) under a written law in respect of which the offender is to be sentenced in accordance with the Sentencing Act and the written law which imposed the criminal penalty for the relevant acts or omissions. It is apparent, therefore, that the material facts establishing guilt, which are the specific acts or omissions which establish the particular offender's criminal responsibility under the written law, must also be taken into account in determining whether the offence is 'trivial', within s 45(1)(b)(i). However, the relevant factors to be taken into account in determining whether an offence is trivial do not extend beyond the material facts establishing guilt, so as to include such matters as mitigating factors that are not part of the material facts establishing the offender's guilt or the objective and subjective personal circumstances of the offender.
[43] GNR v The State of Western Australia [2015] WASCA 5 [49].
[44] Sharpe v Vinning [2020] WASCA 79 [110] - [111].
If the conditions for the making of a spent conviction order are satisfied the court is not obliged to make a spent conviction order. The decision is discretionary. Consideration must be given to all the circumstances of the offence and the offender as well as the public interest.[45]
[45] Wright v McMurchy [2012] WASCA 257 [59].
The relevant principles in respect of the discretion to order a spent conviction order were outlined in R v Tognini:[46]
In my opinion it is appropriate to conclude that having regard to its effect on the ordinary operations of the Spent Convictions Act, the discretionary power to make a spent conviction order conferred by s 45 of the Sentencing Act should be regarded as being of an exceptional character. If the necessary pre-conditions are established, the court should go on to have regard to the seriousness of the offence before it in the circumstances of its commission and in the circumstances personal to the offender. It should take as the ordinary rule the fact that a conviction will be a matter of record with all of the consequences it may entail into the future. It should therefore look to see whether there is some particular circumstance to show that it would be desirable, not only from the point of view of the offender but also, having regard to his or her rehabilitation, from the point of view of the community, why the adverse effect of the conviction should be immediately set aside.
That may often be found in the fact that the conviction, if not declared to be spent, might be a particular impediment to the offender following a particular career, practising a particular profession or undertaking particular employment. It may be that it will be the case that that would be productive of exceptional hardship to the offender and his family, or it may simply be that it can be seen that to relieve the offender of the adverse effects of the conviction would positively aide that person's rehabilitation in a way which may be seen to best accord with the interests of the community. The court may be aided to reach that conclusion if it thinks that there is no pressing public interest in being able to continue to have access to the fact of conviction as part of the process of securing for the protection of the community.
Assessment of the merits of the spent conviction application
[46] R v Tognini [2000] WASCA 31 [27] - [28].
I turn now to consider each of the mandatory preconditions for a spent conviction order.
Is the offence trivial?
With respect to the precondition that the offence be trivial, I must consider the inherent seriousness of the offence and the maximum penalty available, and have regard to the range of seriousness of offences created under written laws, including the inherent seriousness of the offences and the maximum penalty. Further, the material facts that establish guilt, namely the specific acts which establish the appellant's criminal responsibility under s 86(1)(a) of the Emergency Management Act, must also be taken into account.
I have carefully considered the issue of whether the offending may be described as trivial. I find that the offence committed by the appellant is not trivial. A breach of the Emergency Management Act by failing to comply with a direction given under sections 67, 70 and 72A during a pandemic is not trivial.
Is the appellant of good character?
I must determine whether the appellant is of good character. I find that the appellant is otherwise of good character. The appellant has excellent antecedents and has never been convicted of a criminal offence.
Is the appellant unlikely to commit such an offence again?
I must determine whether the appellant is unlikely to commit such an offence again. I am required to predict the likelihood that the appellant will commit such an offence, not just any offence, again.
I positively find that the appellant is unlikely to commit such an offence again. In making that finding, I am mindful of the excellent antecedents of the appellant and the circumstances in which the offending occurred.
Determination
Accordingly, the preconditions for the making of an order for a spent conviction have been established. There is a proper basis for finding that the appellant is unlikely to commit such an offence again or any offence. The offence is not trivial but I am able to find that the appellant is of good character.
I now turn to the question of whether I should exercise my enlivened discretion to order a spent conviction. I am satisfied that the refusal to make a spent conviction order will impact adversely on the appellant's employment prospects. The appellant produced letters from prospective employers who have stated that the conviction does adversely affect her ability to be employed in the hotel industry. Further, I find that there is no public interest in the appellant's conviction for the offence being recorded and exposed to public scrutiny. The appellant has been convicted of the offence in the most extenuating of circumstances.
Accordingly, I find that the appellant should be released immediately from the adverse effects of the conviction upon her and therefore, grant a spent conviction order.
Conclusion
Consequently, I make the following orders:
1.Leave to appeal is granted on grounds 1 and 2.
2.The appeal is allowed on grounds 1 and 2.
3.The sentence imposed by the learned magistrate is set aside and in lieu thereof a fine in the amount of $1,000 is imposed.
4.A spent conviction order is granted.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice McGrath
17 AUGUST 2021
21
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