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…

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 Tonkin v Busby

Details

AGLC: Tonkin v Busby [2021] WASC 61
Case: [2021] WASC 61
Decision Date

CaseChat Overview and Summary

The appellant in Tonkin v Busby pleaded guilty in the Magistrates Court 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), contrary to s 86(1). 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 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. The Court refused leave to appeal on ground 1. The Court allowed the appeal on ground 2, finding that the sentence was manifestly excessive having regard to all relevant factors. The Court found that the sentencing magistrate expressly found that imprisonment was the only appropriate sentence. That conclusion, in the Court's opinion, was unreasonable and plainly unjust when regard was 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.

Orders