Tonkin v Busby - [2021] WASC 61

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   TONKIN -v- BUSBY [2021] WASC 61
CORAM:   ALLANSON J
HEARD:   25 FEBRUARY 2021
DELIVERED          :   9 MARCH 2021
FILE NO/S:   SJA 1005 of 2021
BETWEEN:   GLEN PETER TONKIN
Appellant
AND
SAM BUSBY
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   CHIEF MAGISTRATE S A HEATH
File Number            :   PE 53419 of 2020

Catchwords:

Criminal law - Appeal against sentence - Failure to comply with direction under Emergency Management Act 2005 - COVID-19 pandemic - Whether sentence imposed manifestly excessive

Legislation:

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

Result:

Leave to appeal refused on ground 1
Appeal refused on ground 1
Leave to appeal granted on ground 2

Appeal allowed on ground 2

Category: B

Representation:

Counsel:

Appellant	:	Mr S F Rafferty
Respondent	:	Mr D E Leigh

Solicitors:

Appellant	:	Seamus Rafferty & Associates
Respondent	:	State Solicitor for Western Australia

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

DINHv State of Western Australia [2019] WASCA 167
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
DKN v The State of Western Australia [2018] WASCA 87
Fogg v The State of Western Australia [2011] WASCA 11
Gill v Chief Executive Officer of Customs [2009] WASC 222
Johnson v Vander Sanden [2021] WASCA 27
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Nguyen v Comptroller-General of Customs [2018] WASCA 170
Vander Sanden v Johnson [2020] WASC 331

ALLANSON J:

Introduction

On 21 January 2021, the appellant pleaded guilty to one charge of failure to comply with a direction given under s 67, s 70 and s 72A of the Emergency Management Act 2005 (WA). He was sentenced to imprisonment for 7 months, with 2 months to be served immediately and 5 months suspended for 12 months. The appellant seeks leave to appeal from that sentence.
The offence occurred on 28 November 2020. The appellant appeared in the Magistrates Court on 29 November 2020 and was remanded in custody. He was released on bail on 1 December 2020 and remained on bail until his appearance in court on 21 January 2021.

The offence

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.
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.[2]
[2] Section 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 on in this matter were made under s 67, s 70 and s 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 '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.[3]
[3] 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'.
Perhaps the most extraordinary powers are the general powers 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.

The directions

It was not in dispute that the appellant was subject to a direction to quarantine. The respondent could not, however, identify which direction or directions applied. Between 14 November and 16 November 2020, the State Emergency Coordinator made five directions pursuant to s 67, s 70 and s 72A. One or more of them may have been relevant, depending on when the appellant entered the State from South Australia.
The directions were:
(1)South Australian Outbreak Response Directions;
(2)South Australian Outbreak Response Directions (No 2);
(3)Controlled Border for Western Australia Directions;
(4)Controlled Border for Western Australia Amendment Directions;
(5)Controlled Border for Western Australia Amendment Directions (No 2).
The directions impose a range of requirements. The requirements of each directions are not identical.
(1)The South Australian Outbreak Response Directions required a person who entered Western Australia after 12.01 am on 14 November 2020 but before the making of the direction and who had been in South Australia to comply with special quarantine requirements attached to that direction.
(2)The South Australian Outbreak Response Directions (No 2) permitted entry by approved travellers only, and amended the wording of the quarantine requirements.
(3)The Controlled Border for Western Australia Directions came into effect on 14 November 2020, and prohibited entry into Western Australia by a person who had symptoms, who had received notice that they were a close contact, who was awaiting a test result, or who had received a positive result. It imposed other requirements, including quarantine, on persons entering Western Australia from restricted locations (New South Wales and Victoria). The Amendment Directions came into effect on 15 November and extended certain restrictions to persons who had been in South Australia. The Controlled Border for Western Australia Amendment Directions (No 2) amended the range of persons affected by the directions.
In short, a person could breach the various directions in different ways, by breach of quarantine, but also by entry while that person had symptoms, or had been notified that they were a close contact, or had received a positive test result.

The material facts

The facts read to the court regarding the appellant's breach were:
The World Health Organisation declared a pandemic on 11 March 2020. On 15 March 2020, the Minister for Emergency Services declared a state of emergency effective from 12 am on 16 March in respect to the pandemic caused by COVID-19 pursuant to section 56 of the Emergency Management Act, and that was in the State of Western Australia.
On Monday, 16 November 2020, the accused arrived at the Perth Airport on flight QF887 from South Australia, where he received a self‑quarantine direction to self-quarantine for 14 days at 36 Dealy Close in Cannington. As a result of urgent electrical maintenance being required at that venue, on Saturday, 28 November 2020 the accused was issued with a further self-quarantine direction to self-quarantine at unit 1,103 Francis Street in Northbridge until 11.59 pm on Monday, 30 November 2020.
On Saturday, 28 November 2020, the accused left his self-quarantine address and entered the Northbridge Brewing Company located at 44 Lake Street in Northbridge. Throughout the evening, the accused consumed alcohol and interacted with other patrons at the venue. At 9.45 pm, the accused advised patrons at the venue that he was meant to be self-quarantined, but had escaped for a drink, who then alerted the police to the incident.
At 10.15 pm on the same day, detectives from the COVID-19 Breach Investigation Team attended Northbridge Brewing Company and observed the accused sitting in close proximity, touching and interacting with other patrons at the venue. At the time of police attendance, the door staff advised that patron numbers were 250 people. The current ‑ the venue's current COVID-safe maximum capacity is 322. He was arrested and conveyed to the Perth watchhouse where he was refused bail. His explanation was, 'I just wanted something to eat'.[4]
[4] ts 2 ‑ 3.
The statement of facts was not disputed.
The prosecutor advised that there was no record. The appellant's counsel, however, advised the court that the appellant had convictions in South Australia for a fisheries matter and disorderly conduct which resulted in fines.
The respondent has now put before the court further convictions from South Australia, and a conviction in Tasmania for a driving offence in October 1995, when the appellant was 17 years old. In each case the appellant was fined.
The appellant admitted that he was aware he was required to follow the quarantine direction and was aware of the seriousness of the pandemic. Defence counsel submitted:
Mr Tonkin is 43 years of age. He's a married man with four children and he's the primary breadwinner for them. … This was his first time in custody ….
… The circumstances of how it came about was he came over. He was doing quarantine. He had a test on day 1 during his period of quarantine. He wasn't coping. He was prescribed Valium. It's a drug that he sometimes takes. He says he hadn't taken it for around 12 months before this time. So he just - things were just getting to him. He had a negative test on day 11, which returned on the next day, and, based on the fact he had no symptoms, he made a very poor decision to go out. He consumed alcohol and behaved in a way that is out of character for him.[5]
[5] ts 3.
Material filed on his behalf included character references and evidence of the prescription of Diazepam on 25 November 2020.
The appellant's submissions were not disputed.

The sentencing remarks

The magistrate sentenced immediately. His Honour said that he treated the plea as a plea of guilty at the first opportunity for which the appellant was entitled to the maximum discount in s 9AA of the Sentencing Act 1995 (WA) ‑ that is, a reduction in the head sentence of 25%. The head sentence before mitigation must, accordingly, have been greater than 9 months.
Although his Honour had been advised of convictions in South Australia, he commented that the appellant had no record, apparently regarding the convictions that were disclosed as not relevant to sentence for this offence.
His Honour then said:
However, you have committed a very serious breach of these provisions.
You were subject to quarantine and, rather than complying with it, you left the premises and went to a hotel where there were approximately 250 other people. You mixed with them. It appears you were well aware that you were breaching your quarantine. In fact, you told others there and, presumably, someone there reported it to police because then they observed you touching other people and drinking with them. The potential to spread this very deadly virus within the Western Australia community was very real when you do that.
I have received the explanations concerning you, but, at the end of the day, it was a very selfish decision on your part simply to go and drink when you should have been quarantining. In my view, there needs to be both general and specific deterrence in relation to offences of this type. The Western Australian community has enjoyed being free of the virus within the community because of the strict measures that have been introduced. Unless they are continued to be enforced, then the whole community is at risk and your selfish actions did that. In those circumstances, in my view, imprisonment is the only appropriate sentence to give the appropriate message to the community that these measures must be adhered to.
Accordingly, I'm going to sentence you to a term of imprisonment, but I will partially suspend some of it.[6]
[6] ts 5.
In the course of the plea in mitigation, counsel submitted that, before breaching quarantine, the appellant had been tested on day 11, with a negative result, and he had no symptoms. This submission prompted a response from the sentencing magistrate that those matters were irrelevant 'according to what Hill J said in Vander Sanden'.[7]
[7] ts 4.
I infer his Honour was referring to the passage in Vander Sanden v Johnson where Hill J said:
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.[8]
[8] Vander Sanden v Johnson [2020] WASC 331 [46].
The fact that Ms Vander Sanden ultimately tested negative is different in kind from the fact that the present appellant had recently tested negative on day 11 of his quarantine, and had no symptoms. Those matters are not irrelevant to the risk presented by the appellant's conduct and to the seriousness of what he did. Hill J did not say that they are. Her Honour had earlier identified matters relevant to assessing the seriousness of a person's offending, including 'the extent to which they have complied with the quarantine regime (including whether they have entered a quarantine facility)'.[9]
[9] Vander Sanden [40].
Johnson v Vander Sander,[10] and the subsequent appeal, are the only decisions of the Supreme Court on sentencing under the Emergency Management Act. But, except to the extent that the decisions discuss sentencing principles, they offer limited guidance to the present case. The factual situations are completely different.
[10] Johnson v Vander Sanden [2021] WASCA 27.

The grounds of appeal

The appeal notice contained the single ground that the sentence is manifestly excessive having regard to the circumstances of the case; the appellant's positive antecedents; and the early plea of guilty.
At the hearing, without objection, the notice was amended to state two grounds:
Ground 1 ‑ that the Magistrate erred in placing the offending behaviour in the worst category of offending for an offence of this type, that being a matter that can be inferred from the sentence imposed, the discount granted for the plea of guilty and taking into account other factors in mitigation;
Ground 2 ‑ that the sentence was manifestly excessive having regard to all relevant factors.
While not objecting to the amendment, the respondent did not accept that leave should be granted on ground 1.

Sentencing Act 1995

The principles of sentencing are set out in s 6 of the Sentencing Act. The sentence must be commensurate with the seriousness of the offence, and the seriousness of the offence must be determined taking into account the factors in s 6(2). A court must not impose a sentence of imprisonment unless it decides that:
(a)the seriousness of the offence is such that only imprisonment can be justified; or
(b)the protection of the community requires it.[11]
[11] Sentencing Act s 6(4).
The Court of Appeal in Johnson v Vander Sanden stated clearly that, notwithstanding the public interest underlying the directions made in response to the state of emergency,
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.
One of the fundamental principles of law that applies in this State, which is clearly expressed in the Sentencing Act 1995 (WA), is that imprisonment, and in particular immediate imprisonment, is a punishment of last resort.[12]
[12] Johnson v Vander Sanden [3] - [4].
The effect of imprisonment can be mitigated by the power to suspend imprisonment, wholly or in part. But, 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 sub-section 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.
By s 86, a court sentencing an offender to imprisonment, where the offender is not serving or yet to serve another term, must impose a term that is more than six months. The proper construction and effect of s 86(1) was considered by the court in Johnson v Vander Sanden, where their Honours said:
…the effect of s 86 is that, subject to the express exceptions in the section itself, unless, applying all relevant sentencing principles, a sentence of at least 6 months and 1 day is appropriate in all the circumstances, imprisonment is not an available sentencing option.[13]
[13] Johnson v Vander Sanden [53].
If, having regard to all of the circumstances, a sentencing court concluded that the appropriate term would be 6 months or less, the court is required to consider another sentencing option.

Fresh evidence

The respondent sought, over objection, to introduce evidence of news reports from the ABC, reporting the coronavirus outbreak in South Australia in November 2020, and also a copy of the Australian Health Protections Principal Committee COVID-19 statement of 14 May 2020. The evidence was said to be relevant to the seriousness of the appellant's conduct. It was not alleged that the appellant was aware of any of the news reports. Nor was it alleged that he had been in any of the places associated with the cluster of cases in South Australia.

None of the material now sought to be tendered was before the magistrate on sentencing.
The court has power to permit additional evidence in a sentence appeal, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA). The question that normally arises is whether, had the additional evidence been before the sentencing judge or magistrate, a different sentence should have been imposed. In the present case, the respondent seeks to introduce the evidence to support the sentence that was imposed.
The court, in my opinion, should properly have regard to these facts which are established from the directions, and the statement of facts read to the court:
(1)a state of emergency was declared in Western Australia on 16 March 2020;
(2)Western Australia imposed specific restrictions, including border control measures, in relation to people entering the State from South Australia;
(3)the restrictions were introduced to prevent or minimise harm from the spread of COVID-19;
(4)the appellant was, on entry and again on 28 November 2020, directed to quarantine;
(5)the quarantine period the appellant was directed to comply with was 14 days from when he entered Western Australia.
It was notorious at the time of the appellant's sentencing that 14 days was the standard quarantine period in Australia for the COVID‑19 virus, based on scientific advice.
The news reports as to what occurred in South Australia and the COVID-19 statement do not add anything material to the facts. I would not allow the proposed new evidence to be introduced on the question of the seriousness of the appellant's conduct.
It was not in dispute that the court could have regard to that material should it resentence the appellant.

Consideration

Ground 1

Ground 1 asserts an express error. To succeed on this ground, the appellant must establish the magistrate sentenced on the basis that the respondent's offending behaviour was in the worst category of offending - that is, offending so grave that it warrants the imposition of the maximum prescribed penalty for that offence.
The magistrate's sentencing remarks do not lend themselves to that interpretation. Apart from the sentencing remarks, set out in full above, his Honour, in the course of the hearing, challenged the submission that the offence was 'towards the lower end of the scale for this type of offence', and said:
He has gone into a hotel, 250-odd other people there, has mixed with them. Given that he may have had COVID, would not that have been a mammoth impact on the community?[14]
[14] ts 4.
There is no doubt that the sentencing magistrate regarded the offending as serious, but his remarks do not support a finding that he placed it in the worst category of offending behaviour.
Counsel for the appellant relied on the additional argument that the sentence imposed supports the inference that his Honour sentenced on that basis.
The maximum penalty prescribed by s 86 of the Emergency Management Act is imprisonment for 12 months. The sentence imposed was 7 months, although with 2 months to be served immediately and the balance suspended for 12 months.
Counsel submitted that, his Honour having expressly allowed the maximum reduction of 25% on the head sentence for the plea of guilty, and having regard to other factors personal to the appellant, the starting point must have been more 10 months. That is still short of the maximum penalty prescribed.
It may be accepted that the appellant had personal mitigating factors in his favour. Section 9AA of the Sentencing Act requires the court to state the fact and the extent of any reduction of the head sentence[15] for an early plea of guilty. The requirement to decide and state the extent of the reduction for a particular factor is a statutory exception. What weight is otherwise given to mitigating factors is not a mechanical exercise: a sentencing judge 'identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case'.[16] 'Reverse engineering' to arrive at the sentence that would have been imposed but for mitigation is neither an accurate nor a permissible form of reasoning.
[15] Defined in s 9AA as the sentence that would have been imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.
[16] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [51].
Further, personal and general deterrence are important sentencing considerations in sentencing for an offence of failure to comply with a direction given under the Emergency Management Act.[17] Matters personal to the offender, although not irrelevant, may be of little weight.
[17] See Vander Sanden v Johnson [42]; Johnson v Vander Sanden [2].
Finally, the scope within a sentence of 12 months is limited. A reduction of between 2 and 3 months might be considered less material in a longer sentence. Where the maximum is 12 months, 2 or 3 months can be of greater consequence.
I am not satisfied that it can be properly inferred that the magistrate placed the appellant's offence in the worst category of offences under s 86, or the worst category of offences under the relevant directions. The alleged express error is not made out. I would refuse leave on ground 1.

Ground 2

Section 8 of the Criminal Appeals Act 2004 permits an appeal on the ground that the court imposed a sentence that was excessive, or that there has been a miscarriage of justice. The second ground alleges the implied error that the sentence was manifestly excessive having regard to all relevant factors.
The ground of manifest excess does not require the demonstration of identified specific error in the reasoning or sentencing remarks of the sentencing magistrate. A sentence may be excessive 'because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial) or because the sentence imposed is manifestly too long …'[18]
[18] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6].
A sentencing magistrate exercises a discretion. I cannot substitute my opinion for that of the magistrate merely because I would have exercised a sentencing discretion differently. To find the implied error alleged, the sentence must be so unreasonable or unjust that I must conclude that a substantial wrong has occurred.
It is accepted that a court must not order immediate imprisonment unless positively satisfied that suspension of the term of imprisonment is not appropriate. The decision whether to suspend, in whole or in part, involves a discretionary value judgment. If the court decides to suspend, there is another discretionary value judgment in deciding to what extent the sentence should be served immediately.
Different types of sentence may be reasonably open. In a borderline case, the decision to impose immediate imprisonment may not be unreasonable or unjust.[19]
[19] See Fogg v The State of Western Australia [2011] WASCA 11 [8] - [10]; DINH v State of Western Australia [2019] WASCA 167 [28].
This case is an unusual variation on that familiar theme. In written submissions the appellant argued that it was unreasonable for the sentencing magistrate to determine that imprisonment was the only appropriate disposition, whether wholly or partly suspended; in oral submissions, the alternative was put that the sentence should have been wholly suspended.[20] The respondent accepted that it would be open for the court to find an error by not making the sentence wholly suspended.[21]
[20] ts 23.
[21] Appeal ts 57.
In determining whether a sentence is manifestly excessive, the sentence must be considered in the light of:
(1)the maximum sentence prescribed by law for the offence;
(2)the standards of sentencing customarily imposed with respect to it;
(3)the place that the criminal conduct occupies in the scale of seriousness of offences of that type; and
(4)the offender's personal circumstances.[22]
[22] See, for example, DKN v The State of Western Australia [2018] WASCA 87 [34].
The maximum sentence is imprisonment for 12 months.[23] There is the alternative of a fine up to $50,000.
[23] Emergency Management Act s 86.
The courts have not determined standards of sentencing for the offence.
The critical issue is the place this appellant's conduct occupies in the scale of seriousness for offences of this type.
The respondent submitted that the offence was so grave as to warrant a sentence approaching the maximum.
First, the respondent submitted that assessment of the seriousness of an offence by reference to the maximum penalty needs to take into account the range of conduct that the offence encompasses.[24] Section 86(1) applies to breaches of directions made under six sections of the Act. Not all directions relate to the quarantine regime. Because of the wide variety of directions that can be made, breaches of directions can differ widely in seriousness.
[24] Nguyen v Comptroller-General of Customs [2018] WASCA 170 [33]; Gill v Chief Executive Officer of Customs [2009] WASC 222 [25].
The submission is supported by authority and correct.
Second, the respondent submitted that the seriousness of an offence constituted by a failure to comply with a direction will depend on, at least: the nature and seriousness of the hazard giving rise to the emergency; whether the direction is made in the context of an emergency situation or state of emergency; and the extent to which successfully containing the threat posed by the hazard depends upon compliance with the direction.
While I agree that all of those matters are relevant considerations, there is obviously room for a wide variation within each factor. The five directions identified by the respondent were all made under powers arising in the state of emergency and are all responses to risk of transmission of COVID-19 into the community. They cover a range of behaviours. Many other directions have been made in response to the same hazard during the state of emergency.
The factors identified by the respondent cannot exclude circumstances relevant to the particular offending. Some of those circumstances were identified by Hill J in Vander Sander v Johnson [40] - [41]. Accepting that the directions are for the purpose of managing the risk of transmission into the community, the extent to which the appellant had complied with the directions, and the recent negative test, are relevant circumstances. Conversely, it would have been relevant had the appellant avoided quarantine, or breached quarantine earlier, or without knowing whether his day 11 test was negative or positive.
It is a relevant factor that the appellant's conduct resulted in his being in contact, or potentially in contact, with many people inside licensed premises and for an unknown period, but at least 30 minutes. The appellant knew that he was subject to quarantine for another two days.
The appellant had no good reason for breaching quarantine.
The last consideration, the appellant's personal circumstances, are relevant but may be given little weight where general and specific deterrence are the most important sentencing considerations.
In Johnson v Vander Sanden the court's remarks were directed, in the circumstances of that case, to whether the sentencing court had erred in law in imposing a term of imprisonment to be served immediately, without considering the option of suspended or conditionally suspended imprisonment. That is just one application of the more general principle in the Sentencing Act that imprisonment is a punishment of last resort and a court must not impose a sentence of imprisonment unless satisfied, having regard to pt 2, div 1 of the Sentencing Act, that it is not appropriate to use any other sentencing option.
The sentencing magistrate expressly found that imprisonment was the only appropriate sentence. That conclusion, in my opinion, is unreasonable and plainly unjust when regard is had to the particular circumstances of the appellant's offending and, in particular, the fact that the offence was committed on day 12 after receiving the negative test result from the second test on day 11. The learned magistrate regarded those matters as irrelevant. They were not. But it is not necessary to identify specific error. The result was the imposition of a custodial sentence when that was not warranted.
I would grant leave on ground 2 and allow the appeal. I will hear the parties on resentencing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
9 MARCH 2021